Beware Of ‘Undue Influence’ In Estate Planning

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By: Robin Bresky, Esq. Law Offices of Robin Bresky Special to the Boca and Delray newspapers

It has been said that nothing is certain except death and taxes. While enjoying life, liberty, and the pursuit of happiness, everyone also needs to plan for the inevitable. That means creating and maintaining an estate plan that ensures that your property, business(es) and financial assets will go to your loved ones in the way that you choose. The law provides tools such as wills, trusts, and inter vivos transfers (gifts made while you are alive) to accomplish your goals and provide for the people you care about most.

Beware of the unscrupulous

While the law provides such protective tools, there may also be unscrupulous opportunists willing to misuse them to take advantage of others — especially seniors. We hear all too often about seniors who were improperly pressured or deceived into including someone as a beneficiary of their will or trust, or making valuable gifts under suspicious circumstances.

The targets of such schemes are often people with substantial assets who happen to be vulnerable due to advanced age, illness, problems with their memory, or isolation from their family. Family members who were expecting an inheritance are sometimes surprised to find that they were cut out of the will or received much less than anticipated, while a stranger or a distant relative suspiciously receives a large benefit.

A presumption of undue influence can arise when a person receiving a substantial benefit from a will, trust, or inter vivos transfer has a confidential relationship with the person who made the will, trust, or gift and is active in procuring the contested will, trust, or gift. The “confidential relationship” can be a formal fiduciary relationship (such as with an agent, advisor, or manager) or an informal relationship of trust (such as with a friend, caregiver, or relative) where the influencers are able to improperly exert pressure on the person to include them in the will or trust or to make a gift.

If you suspect undue influence

In an action contesting the validity of a will, trust, or inter vivos transfer, the probate court looks to circumstantial evidence because undue influence usually happens “behind the scenes” and the person who died cannot testify about what happened. A few examples of potential signs of undue influence could be that the beneficiary recommended a particular lawyer to draft a will or trust or took the maker to the attorney or gave instructions to the lawyer, was present when the will was signed or chose the witnesses for the signing, or hid the will in his or her files and then asked the court to implement it.

Once a person contesting the validity of the will, trust, or inter vivos transfer presents enough evidence to raise a presumption of undue influence, the burden shifts to the beneficiary to prove that there was not undue influence. The probate court can declare a will, trust, or inter vivos transfer void if the petitioner shows that it was procured by fraud, duress, mistake, or undue influence. A Florida lawyer can provide helpful advice if you suspect undue influence.

Robin Bresky, Esq., is the founder of The Law Offices of Robin Bresky, which focuses on Estate Planning, Probate, Estate and Trust Administration, Appeals, Litigation Support, and Trial Assistance. A member of The Florida Bar since 1999, Bresky earned her Juris Doctorate degree from Chicago-Kent College of Law. The Law Offices of Robin Bresky supports clients throughout their life cycles, including college graduation; business ownership; marriage; parenthood, including raising special-needs children; asset protection; loss of a spouse; diminished capacity; or death. Call 561-994-6273 or visit www.BreskyLegal.com to learn more.