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Home > Blog > Probate > What To Know About Undue Influence If You Are Caring For Your Parents

What To Know About Undue Influence If You Are Caring For Your Parents


If you are an adult responsible for caring for your elderly parents, you likely have your hands full. The last thing on your mind might be potential legal defenses to use  at a probate hearing. However, with more and more adults caring for their parents it has created some unintended consequences in Florida probate courts when it comes to arguing undue influence. For instance, a mother with three children may have initially intended to split her assets equally among all three. However, if the mother later falls ill and requires full-time care, which is provided by one of the children for several years, she may amend her will to give a greater share of her assets to the child who cared for her. She may do this to express gratitude or to try and compensate her child for the cost of caring for her and the financial and career opportunities that were missed out on as a result. Of course, she may also have been pressured, coerced, or manipulated into altering her will by her caretaker, which is where undue influence claims come into play. It is not uncommon for parents to leave a greater share of their estate to the child or children who cared for them, it is also not uncommon for the other children to contest this decision as undue influence once the will is reviewed in probate court, arguing that their parents loved them equally and would have wanted to split their estate evenly between them.

Understanding Undue Influence

Undue influence occurs when excessive pressure is used to overcome an individual’s free will. In cases of wills and estates, undue influence is often exerted on the elderly by caretakers, who, by nature of their professions, have a great deal of access and alone time with the testator. For instance, an in-home assistant may abuse her patient in order to get him to make her a beneficiary in his will. However, not all cases are so clear cut. In order to understand why so many people caring for their parents are getting caught up in these claims, it’s helpful to review the factors required to establish undue influence. Undue influence is presumed by the court in cases where:

  1. The person and the testator had a confidential relationship;
  2. The person was active in procuring or arranging for the preparation of the will or devise; and
  3. The person is a substantial beneficiary of the will or devise.

As you can see, it would be fairly simple for an adult who is living with and caring for their parent to meet these criteria almost automatically. The child-caretaker is likely to have a confidential relationship with their parent who lives with them, would be likely to make any calls for them to lawyers that were needed, or, at the very least, transport them to the attorney’s office to sign the will, and, finally, as noted above, there are a number of logical reasons why the primary child-caretaker would receive a more substantial share of the parents’ assets than the other children. This can create an automatic assumption that the child-caretaker then has the burden of disproving.

The Dutiful Child: A Defense to Undue Influence

Several appellate courts in Florida have begun carving out a defense or exception to undue influence claims for the “dutiful child,” or the child who assumed the responsibility of caring for their parents. This does not prevent claims from being brought, but it does provide an affirmative defense against them.

Schedule a Consultation

If you were the primary caregiver for your parent and are now facing challenges to their will in Florida, it’s critical to talk to an experienced West Palm Beach probate attorney as soon as possible. Schedule a consultation with Larry E. Bray today, and find out how he can help you get the inheritance that you deserve.



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