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When It Looks Like a Presumption of Undue Influence Exists in an Estate Case
Posted by Martin Heller Potempa & Sheppard, PLLC on August 29, 2018
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Undue influence. It might be a term you are searching for to describe concerns regarding a loved one’s last will and testament. The implication has everything to do with someone taking advantage of another’s vulnerable state. It could be a matter of age or infirmity. In any event, there are many clear-cut examples of individuals unduly influencing an estate plan to benefit themselves.
The most flagrant example of undue influence cases generally involves dishonest caretakers. Day after day, they may interact with your beloved mother or father. Although your parent is exhibiting signs of dementia, you dismiss them. You prefer to remember mom or dad when their memory and actions were not altered.
After your loved one dies, you search the house and find what purports to be their most recent will. You are shocked – as it has been changed within the last few years. Even more surprising is the discovery that your parent’s caretaker is named to inherit the majority of the assets.
Could this be a case of undue influence? Perhaps. Could it involve fraud? Possibly. And, of course – you have two choices. You can just probate the will and contain your anger. Or, you can visit the offices of an experienced estate attorney to review your suspicions.
In the end, it may be up to the court to determine if there is a presumption of undue influence in an estate case. A recent Tennessee court decision ruled regarding a will contest where there is an issue concerning the named executor. The result may interest you.
Judy A. Allen, the decedent’s niece contested the will entered into probate. Ms. Land was her mother’s sister and Ms. Allen testified that she spent considerable time with her aunt. In 2010, Ms. Land asked her niece to take her to an attorney so that she could prepare a will. The older woman was adamant that she did not want her husband’s children to benefit from her estate. She also did not want Charles Land, her second husband – to become aware of her plans.
At some point, Ms. Land fell and required care. Although she required substantial care, Ms. Land refused to go into a nursing home. During a family meeting, Mr. Land’s sister, Pauline Hill became involved in the conversation and indicated that she could not offer her help.
Within days, an argument ensued over financial concerns. Mr. Land was unaware that his wife had a savings account that included Ms. Allen’s name. He was so angry that he went to the bank with his wife and instructed the banker to remove Ms. Allen’s name from the account. (Ms. Allen learned of this when the banker called her – also explaining that he tried to assure Mr. Land that there was no evidence that Ms. Allen was “stealing money.”)
The Argument Continues
The next few days were difficult. Ms. Allen returned to her aunt to take care of her, despite Mr. Land’s admonishment to stay away from the house. Ms. Allen became concerned when she saw a pistol next to Mr. Land’s chair and called both her father and the police.
During a confrontation at the house, Mr. Land’s children and grandchildren were present. When Ms. Allen accused Mr. Land of lying about stolen money to the banker, the altercation became physical as the younger family members attacked her.
Subsequently, the police came to Ms. Allen’s home and told her that the family claimed she was not giving her aunt medication according to schedule. For eight days, the police escorted Ms. Allen to the house so that she could provide her aunt medication. After the eight days, the police indicated they could no longer assist.
Within five days after the encounter at the house, Ms. Allen’s name was removed from the bank account. Additionally, her aunt executed a new will. The will named Pauline Hill’s husband, Kevin as the executor. Ms. Allen was advised that her name was removed as her aunt’s power of attorney.
Despite the circumstances, Ms. Allen attempted to stay in touch with Ms. Land. When she explained that the family was upset by the actions of Mr. Land’s children, Ms. Land put the blame on her. At Christmas time, Ms. Land even hung up on her niece when she called to extend a holiday greeting.
Ms. Allen persisted in her attempts to communicate with her aunt. When Ms. Land was ultimately confined to a nursing home, Ms. Allen went to visit her regularly. Her aunt warned her that she should be careful that her visits went undetected. Mr. Land’s children had instructed her to send Ms. Allen away.
The Replacement Will
Pauline Hill testified with regards to the replacement will. She stated that Mr. Land’s children accompanied them to the attorney’s office so that Ms. Land could execute a new will. She referred to the children as though Ms. Land was actually their mother – rather than their stepmother.
According to Ms. Hill, Mr. and Ms. Land requested that she assume Ms. Land’s power of attorney and that Mr. Hill become the executor of the estate. The court questioned a number of transactions taken from Ms. Land’s bank account. Some were to Ms. Hill directly, while others benefited Mr. Land’s children and grandchildren.
At the trial court level, the jury found that the Hills had exhibited undue influence on Ms. Land that caused her to change her will. They also determined that this meant the Hills had profited as a result and that the transactions were deemed unfair.
Upon review by the upper court, the court found sufficient evidence to agree with the jury’s verdict.
Disturbed that something is not right with a loved one’s will? The Law Offices of Martin Heller Potempa & Sheppard PLLC can assist you in assessing your concerns. Contact us to schedule an appointment.
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