Bay Area Estate And Tax Planning Law Firm

4 criteria for undue influence

On Behalf of | Nov 19, 2019 | Uncategorized |

Undue influence typically targets financial gain. It may be direct fraud, or it may just be the process of “persuading” someone to do something else with their money.

For instance, say that your parents have $1,000,000 and two children — you and your sibling. You expected to get $500,000 each when they passed away. When the will arrives, though, you find out that you both got a mere $100,000. The other $800,000 went to a personal caretaker.

The will appears legal. Your parents did write and sign it. But you still feel like the caretaker preyed on your elderly parents and took advantage of the situation to steal your money. If so, that’s undue influence.

How to identify it

This is just one example, and it can look many different ways in different cases, but there are a few key criteria you can look for to identify it. The four main ones are:

  1. The victim is vulnerable.
  2. The victim and perpetrator have a relationship of power, trust or authority.
  3. The perpetrator targets a vulnerable time and takes clear steps to take advantage of the situation.
  4. The result is a financial loss.

What does this look like exactly? Again, it’s always different, but you will know it when you see it. For instance, the vulnerability of the loved one could be due to age, frailty, medical conditions or mental conditions. A person may have dementia and not understand what’s happening, for example.

The relationship of power is also different from case to case, but the caregiver relationship is a perfect example. The elderly person needs that care. They need assistance. The caregiver has some leverage as a result. They can make threats. Even family members acting as caregivers sometimes do this. They also have the proximity to execute their plan since they naturally see the elderly person often.

Taking steps to take advantage of the situation depends on what it is. Some examples include proposing changes to the will on the day a person is hospitalized or isolating an elderly person so they cannot turn to other family members or friends for help. If the caregiver spent a day alone with your parent and they decided to amend their will and give that person $800,000 at the end of the day, that’s a clear red flag.

Your options

Undue influence is a sad reality that targets the same vulnerable individuals who need the most protection and assistance. If it happens to your parents, you need to know exactly what legal steps you can take.