Would You Be Able to Spot Undue Influence or Coercion?

When someone makes a will, there are two basic requirements for the will to be valid: The person must know and appreciate the consequences of his or actions–that is, be mentally competent to make the will or other estate document. And the estate documents must not be the result of duress, pressure, force or coercion (note that there are other procedural legal requirements to make a will, but these are the most common ways that wills are contested by others).

The Difficulty With Coercion or Undue Influence

When someone starts to decline mentally, we can see it. If we don’t, in a will challenge in probate court, medical records might give us some indication of the deceased’s mental state at the time the will was made.

But coercion, pressure or undue influence by someone else, placed on the deceased when he or she was making a will, is different because it often happens behind closed doors. There are rarely records of pressure or influence that was exerted. Outsiders, friends or family, are not privy to the pressure or coercion that lead to the will.

So how would you know if a loved ones’ will or trust is the result of some pressure or undue influence by another? Or that some other person exerted pressure on the deceased, or took advantage of the deceased, in order to get him or her to include or exclude something on the estate documents?

Mental Decline or Disease

One big clue is mental decline; people who are declining mentally–even if not fully mentally incompetent–often are victims to outsiders who are there to “help them.” In truth, in a declining mental state, the deceased is susceptible to outsiders pressuring them, and may trust outsiders more than should be the case.

Mental decline doesn’t have to be because of disease. Any condition that renders the person helpless, or unable to manage his or her affairs, could lead to a situation where an outsider can exert undue influence.

Increasing and Inappropriate Roles

Sometimes, an outsider has more of a stake in the creation of the estate documents than he or she should have.

So, for example, if an in-home caretaker is suddenly managing the person’s financial affairs and hiring the lawyer, and inventorying the person’s assets–that might be a red flag that there is coercion happening. Or, imagine a golfing buddy that now suddenly is helping the person move around financial assets.

Unexplained and Sudden Movement of Assets

If you are privy to the information, and you can detect sudden, unexplained movement of valuable assets, in a way or time that makes no sense, that may be a clue of undue influence.

As an example, if someone has never invested in property before, and now at age 80 they’re suddenly sinking money into property, or if someone has had a CD or annuity for years, and now at an old age, they suddenly are liquidating it, that could be a red flag that someone is behind the scenes making this happen.

Isolation

Isolation can also be a clue that there is coercion happening. Often the person influencing the person, is purposely keeping friends and family far away in order to allow the coercion to happen.

Call the West Palm Beach probate and estate law attorneys at The Law Offices of Larry E. Bray today if you have a will contest to bring, or to defend against.

Source:

floridabar.org/the-florida-bar-journal/twelve-ways-of-proving-the-negative-and-overcoming-the-carpenter-presumption-of-undue-influence/