Undue Influence in Estate Planning
“Undue Influence” occurs when someone pressures another in such a way that the person being influenced (the “influenced person”) is not acting in accordance with their own free will. Instead, they are being manipulated into taking a different action from what they had originally intended, which ends up benefiting the influencer. The influencer manipulates the influenced person in many ways, including but not limited to:
1) Flattery or sweet-talking a person who is susceptible to believing the flattery;
2) Threatening the influenced person verbally or physically; or
3) Creating a web of lies or planting seeds of doubt about family members or others that persuade the influenced person to change his or her estate plan in favor of the influencer (known as “relationship poisoning”).
Undue influence often arises when an influenced person becomes ill or has questionable judgment due to cognitive decline. For example, Mom has been diagnosed with early-stage dementia. She is divorced with adult children from a prior marriage and her current partner influences her to change her estate plan so her assets go to him instead of to her children. Such a plan is typically carried out in secret where the pertinent parties don’t know about it until the influenced person dies or becomes fully incapacitated (when it’s too late to reverse the damage).
Undue influence may be exerted by a caregiver, a partner, a child or children, or a friend.
Those concerned about an influenced person being under the influence of a “bad actor” can resort to legal action through the court to protect the influenced person. Bad decisions made by the influenced person, under threats or false pretenses, may be reversed through the courts but, in order to prevail one must prove that: (i) the influenced person was susceptible to undue influence (as from a cognitive impairment); (ii) the influencer had the opportunity and disposition to exercise such influence; and (iii) that the transaction would not have been made except for the actions of the undue influencer.
WHO IS SUSCEPTIBLE TO UNDUE INFLUENCE?
Certain factors may increase the likelihood of a person being susceptible to undue influence.
1) Age: the elderly are especially vulnerable because of higher risk for dementia or other types of cognitive impairment.
2) Isolation from family and friends due to estrangements or other conflicts.
3) Terminal diagnosis: this causes increased stress and trauma which can in turn make a person more susceptible to outside influence.
4) Depression.
5) Dependency: When a person is dependent on the influencer for support, companionship, transportation, housekeeping, medications, or food.
6) Emotional manipulation of the influenced person.
7) Substance abuse: alcohol, prescribed drugs, illicit drugs, can alter a person’s judgment. The influencer may be in a position to withhold needed pain medications or alter capacity by overdosing the influenced person on drugs or alcohol.
8) Grief: recent loss of spouse, child, friend, or pet.
WHAT ARE THE SIGNS OF UNDUE INFLUENCE?
Undue influence is difficult to detect when it is happening and influenced persons subject to it often fail to recognize that it is occurring and side with the influencers, posing challenges to lawyers, social agencies, aging network providers, and law enforcement officials who seek to hold bad actors accountable. If you suspect undue influence may be occurring (or has occurred), below are some questions to help make an assessment.
1) Does the decision maker appear coherent and aware of what’s going on?
2) Are there any signs of physical abuse or neglect such as bruises, scrapes, dirty clothing, or weight loss?
3) Are there signs of emotional abuse such as the influencer criticizing the decision maker or calling them derogatory names?
4) Do the decision maker’s actions seem out of character?
5) Is the decision maker purposely kept isolated from family or friends?
6) Does the influencer let the decision maker speak or does he or she control the conversation?
7) Does the influencer keep you from speaking to the decision maker alone?
8) Who is controlling the decision maker’s finances?
THE BOTTOM LINE
Each person should be able to freely decide what happens to their assets during their life and at the time of their death.
Undue influence is a psychological process intended to manipulate and control a person’s decision making. Undue influence can cause a person to take actions or make decisions they would not do otherwise. Such actions or decisions can have serious negative consequences for the influenced person and their loved ones. Importantly, the influenced person’s intent is not carried out because the influencer takes advantage of a vulnerable person to benefit the influencer. One way to thwart undue influence is for a person to have their estate planning and other legal documents in place prior to a serious illness or cognitive deterioration with notice to a trusted friend or family member if any potential changes are attempted that do not make sense, are sudden and not explainable, or are contrary to what the person had initially expressed.