Estate Planning is critical to making sure your wishes are carried out. This series focuses on how an Estate Plan could be challenged. This series will show the importance of doing Estate Planning in the right way. The first article in the series looked at formal requirements. This second article focuses on undue influence.
Undue influence consists of someone taking unfair advantage of another, especially when they hold real or apparent authority over them. An example of this is a caregiver for an elderly person who isolates them from their family and convinces them to leave most or all of their assets to the caregiver. Essentially, the person exerting undue influence takes unfair advantage of another person’s frailty of mind or body to get an unfair advantage over them. Undue influence can come from an outsider, such as the caregiver, or could come from a family member.
Undue influence has a few red flags. If the person is leaving their assets in an unusual way, this could be a warning sign. For example, if someone has children or grandchildren and an elderly person disinherits them and gives everything to the caregiver, this would be a signal of possible undue influence.
That doesn’t mean that you cannot choose to leave your assets in an unusual manner. You don’t have to leave your assets equally to your children. But if you are going to have a plan out of the ordinary, you’d want to be extra cautious to avoid claims of undue influence. Keep the possibility of an undue influence claim in mind.
For example, George had three children. His daughter Mary helped him daily. His other two children were never as close and didn’t visit at all and only called a couple of times a year. George decided he’d leave his estate entirely to Mary for those reasons. When George visits his estate planning attorney, he should not involve Mary. It would be best if Mary doesn’t even drive him to the attorney’s office and certainly should not be in the consultation the whole time. George should consult privately with the estate planning attorney who will document their conversation. This will protect George’s wishes and Mary’s inheritance from a claim of undue influence.
For example, if you’re doing a plan and leaving all your assets to Mary, you’d want to be sure not to involve Mary in the estate planning process more than absolutely necessary. The greater Mary’s involvement, the greater the risk of a challenge for undue influence.
There are many ways an Estate Plan could be invalid and not carried out. By consulting an experienced Estate Planning attorney who focuses their practice in the area, you can minimize the risk of your Estate Plan being invalid.
Here are links to prior articles in this series:
Reasons to do Estate Planning articles:
Part 1: Who
Part 2: What
Part 3: When
Part 4: Where
Part 5: How
Part 6: Why
Reasons an Estate Plan Could Be Challenged articles:
Part 1: Formal Requirements
Stephen C. Hartnett, J.D., LL.M.
Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
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