Undue Influence – Will And Trust Contests And Other Probate Litigation Cases
“Undue influence” has occurred when a person has been manipulated, coerced or pressured by another to sign a Will, Trust, or other financial document that does not represent the true and independent wishes of the owner.
We have handled many cases where Undue Influence was exerted on a person in the making of their Will and Trust. We have also handled many cases where undue influence has been exerted upon a person to change a bank account or stock account designation, life insurance policies, sales and transfers of real estate, life-time “gifts” and loans, and the transfer of other assets during a person’s life. Power of Attorney abuse, financial elder abuse, and concealment of assets are also areas where undue influence issues may arise.
Common Scenarios In Undue Influence Cases
– There was a sudden, “last minute”, or very late in life change to a Will, Trust, bank account or life insurance policy;
– A new lawyer is used to handle the last changes to the documents, as opposed to the person’s long-time attorney;
– The changes are made when the person is very old, sick, in a nursing home;
– The beneficiary “isolated” the person from other family members when the changes were made;
– The beneficiary was also named on the person’s Power of Attorney and has been handling their finances and bill paying;
– The changes are made when the person was suffering from Alzheimer’s, dementia, Parkinson’s, or mental illness
– One child inherits the entire estate, excluding other children;
– A new spouse inherits the entire estate, excluding natural children;
– A “caretaker”, neighbor, or other unrelated person inherits to the exclusion of family members;
– The person’s estate plan “doesn’t make sense” in light of the good relationship you may have had with the person.
Four Components To Prove Undue Influence In Ohio
We have extensive experience in proving the four required elements necessary to show that undue influence was exerted upon another to change their estate plan.
Those four elements are:
- Susceptible Person – The first part of proving undue influence is a showing that the person who made the change is in a “weakened condition”. The change can be to: a Will, Trust, beneficiary designation on an insurance policy or bank account, beneficiary change on an investment account, transfer on death designations, and even gifts or sales of assets. The “weakened condition” is key since the person making the change is unable to resist or “fend off” the influence of another. Any medical evidence of dementia or Alzheimer’s, Parkinsons or reduced cognitive functioning is helpful evidence. One can be susceptible in Ohio by reason of “advanced age” since most people are weaker when older.
- Opportunity – The person who benefited from the change has to have the opportunity to influence another. Sometimes the person who benefitted creates their own “opportunity” by “isolating” other family from the owner of the assets. Evidence that they lived together, visited often, etc. indicates opportunity. In addition, evidence that the person who benefited was a caretaker or power of attorney will assist in showing that the opportunity was present.
- Fact of Influence – The “fact of influence” is usually proven by circumstantial evidence since there is rarely a video recording of the interactions. Some examples of that circumstantial evidence are: the change to a new lawyer, removal of a phone, isolation of the person from other family members, the taking of control over finances and other decisions, being present when the new lawyer met with the person, not providing information to family members when the person is sick or in the hospital , transfers by a power of attorney to themselves or to their own family, and saying disparaging or negative things about the other family members. Of course, there may be many others given a different scenario.
- Change in Plan – The change in the estate plan is usually evident; the Will/Trust or other estate documents signed is different from the way the assets were intended to go under a plan made when the person was not weakened by old age, sickness or disease.
Contact Us To Learn More
Zigray Law Office, LLC is based in the Toledo area and serves clients throughout all of Ohio. We handle the majority of our Ohio undue influence cases on a contingency fee basis.