Some Good Information on Undue Influence
(Editor's note: Brian is Clear Counsel's Communications Director. His prompts represent a conglomeration of inquiries submitted. If you have you have a question you would like answered in an upcoming video, email the inquiry to firstname.lastname@example.org)
Hello. I'm Jonathan Barlow. I'm a probate attorney here at Clear Counsel Law Group. An important question that I'm often asked about is undue influence. It frequently comes up both in when we're preparing wills and trusts for people, but also often comes up after a person passes away.
What is undue influence? Undue influence is when a person who is in a position of authority over another person, who's called the vulnerable person, exerts influence or control over that other person to the point that the vulnerable person acts against his free will, or he does something that he otherwise normally wouldn't have done. Frequently we see that in the context of the vulnerable person creating a will or a trust where he leaves an unnatural gift to that other person who had been exerting influence over him. It's a question that often comes up from people who call in or write to our law firm.
In fact, I think Brian has some questions about undue influence right now.
Brian: You just mentioned an unnatural gift. Will you explain what that means?
Jonathan: Yes. An unnatural gift would be something that you wouldn't expect to see. For example, if we have Mom; Mom has three kids; a natural disposition of Mom's estate would be to give each child one-third. A third, a third, a third. If Mom's passed away, and suddenly a will pops up where 50% or 100% of her estate goes to the caretaker who had been coming in to help her with her medications, and her finances, and things like that, and the kids are cut out, or the kids' amounts are shrunk down to some degree, that would be unnatural. That's something that we wouldn't normally see happen. It certainly can happen, if Mom wants to, but it raises questions of why did Mom do that. Did she do that because she was exercising her own free will for the caretaker, or did the caretaker exert some type of influence, or undue influence, over Mom in creating that will? Did that kind of answer that question a little bit?
Brian: It did, but I am curious if it is possible at all to give an unnatural gift.
Jonathan: Good question. Yes, that's a good question. Let's say the will did pop up after Mom's passed away, and we have that situation where the caretaker gets 50%, and the other three kids, now instead of splitting the full, they're splitting the other 50% so they get a sixth each.
Yes. Mom absolutely can do that, an sometimes Mom wants to do that because she's grateful for what the caretaker did for her. Maybe all three kids abandoned her; they haven't been out to visit Mom for years, and Mom felt bad about that; she was grateful for what the caretaker did, and so she left a gift for the caretaker. Mom can do that, no doubt.
It's just a question of why did Mom do that. Did Mom do that because she was exercising her own free will in doing so, or did she do so because the caretaker had been giving her subtle suggestions? "Hey, Mom, let's go take you over to the attorney's office; I want you to sign a will. Don't you think it would be a good idea to decide what you're doing with your house? You know I'm living on my own, and I don't have a house." Suggestions like this could indicate some type of improper influence by the caretaker.
It's just a question of why did Mom do that: Did Mom do that of her own free will, or because the caretaker was influencing her to do so?
Anything else, Brian, you think about this question that's important?
Brian: I'm confused. Can just a caretaker exert undue influence, or can someone else, as well?
Jonathan: That's actually an excellent question, and it often comes up. The type of relationships that we watch for to see whether an undue influence is occurring, it's not confined only to a caretaker situation. That's a common situation because that's someone usually outside of the family. However, it's really any person who is in a position of authority or control over that other individual. Less frequently, it could possibly even be a spouse. That would be pretty unusual, but you could see a spouse improperly influencing their spouse to do something. More common, though, would be a child situation where a child may exert some type of improper influence over their mother or their father. For instance, a lot of times we see here in Las Vegas where one child lives here, Mom lives here, and the other kids live in the other parts of the country; so that one child has a lot more access to Mom. If we see Mom making larger gifts through the will, or otherwise, to this one child, we certainly question why is she doing that. Is that because that one child has access, and is exerting undue influence?
We typically would see someone like a healthcare provider, like a nurse or someone like that, helping in the house; it could be a friend down the street who is fulfilling the role of caretaker. It could be a spouse. That would be pretty unusual, but it could be a spouse, and it could often be a child who has access and control over her parent.
The most important thing in this analysis, and thinking about undue influence, is simply to determine did the vulnerable person act of his own free will, or did he do this thing, giving a gift to somebody else, because that person exerted improper, undue influence, or control over him, suggesting to him in ways that essentially destroyed his free will. That's the big question in undue influence, whether that person acted under his own free will, or not.
We have some excellent blog entries about this on our website, ClearCounsel.com.
Myself and other attorneys here have blogged about undue influence, a very informative blog post. We encourage you to go read those blog posts at ClearCounsel.com for more information.