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Proving Undue Influence in Probate Court

Let’s talk about elder financial abuse and undue influence, and let’s start with a hypothetical scenario. Bill is an only child. Upon his father’s death, he learns that his dad’s last will leaves a third of his estate to a woman called Leeanne.

Bill is stunned. His father had long been telling him that he is his sole heir. And as for Leeanne — yes, she entertained his dad by playing cards with him two or three times a week. But she’d only come into the old man’s life after his diagnosis with chronic back pain a few months ago. Before then Bill had never even heard of her. He immediately suspects that Leanne must have influenced his dad into changing his will.

Fortunately for him, there’s a way he can still assert his beneficiary rights. He can contest his late father’s will in probate court. Proving that Leanne exerted undue influence might be difficult because Bill’s most important witness, his father, can no longer testify. But it is by no means impossible. And if Bill succeeds, the probate judge will most likely invalidate the will.

To prove that a will or any other trust document was changed or created under undue influence, a plaintiff’s attorney will look into a series of questions. He or she will also try to find witnesses who knew the will maker well and can testify to the relationship between that person and the influencer. (Relatives, good friends, health care providers and lawyers come to mind.)

The questions the attorney will explore begin with: Did the will bequeath property in an unexpected way? E.g. did the will maker amend it to exclude close relatives for the benefit of others? Since the unfair division of property alone doesn’t prove foul play, the attorney will then look into additional questions: Was the will maker dependent on the influencer? Was the will maker susceptible to undue influence because of his or her mental or physical condition? Did the changes to the will benefit the influencer?

In California, changes to wills or trusts are generally deemed suspect if the amendments benefit certain people. These include the attorney who prepared the document as well as caregivers not related by blood who recently provided care to the creator of the will or trust. To allow for cases where a will maker actually wants to make a gift to such people, meaning where there is definitely no coercion, the law provides for a certificate of independent review by an attorney other than the one preparing the instrument.

Elder financial abuse through undue influence happens more often than one might think. And as the baby boomer generation grows older, I expect that we’ll see more and more con artists scam unsuspecting people out of their money. The key is to stay vigilant — and to take action if you suspect foul play.

By Kevin J. Moore