People who own property can use a will or trust to determine who gets their property when they die. The concept is called testamentary freedom, and is deeply engrained in American law.
But a will or trust is invalid if it is the product of undue influence.
Allegations of undue influence are increasingly common.
Sometimes the alleged influencer is a non-family member, such as a caregiver. But the most common situation pits siblings against each other.
This is sad on multiple levels. It is probably the last thing the decedent wanted to happen; it can split previously close family apart forever; and, because litigation tends to be ridiculously expensive, a large portion of the decedent’s estate—sometimes all of it—can end up going to lawyers rather than the decedent’s intended beneficiaries.
Sometimes a person gets away with having exercised undue influence, or a flimsy claim of undue influence pays off for the claimant, simply because other members of the family don’t want the dispute to get into a courtroom.
Family members who don’t want to fight over money can find themselves agreeing to a lopsided compromise worked out in mediation.
There are a number of legal strategies that can help reduce the chances of undue influence occurring. For example, an increasingly vulnerable person might want to consider using an irrevocable, rather than revocable, trust.
There are also legal strategies for reducing the chances of a baseless claim of undue influence, such as a no-contest clause, which can provide a strong disincentive to anyone thinking about making such a claim.
The best approach, of course, is family harmony, which often includes open communications about the parent’s estate plan and the reasons for any out-of-the-ordinary will or trust provision.
If everyone in the family knows what the will or trust of their loved one says, and has an opportunity to express any concerns about it prior to the loved one’s death, that can make a huge difference later.
Especially when a loved one has just died, some family members may not deal well with surprises. Because of the circumstances of the parent’s death, some of the survivors may be at a low point mentally, physically, emotionally or psychologically.
That’s not a good time to learn what may seem like an unfair split of the decedent’s property … or to be guessing why the decedent chose that particular distributive plan.
The best approach also involves having multiple family members taking an active interest in the wellbeing of their aging loved ones.
As always, I must add that this column does not contain legal advice, and that you should not rely on any of the above information to determine what is in your own best interest.