Tuesday, February 9, 2010

Undue Influence on the Elderly

As part of our trust and estate litigation section we have encountered an increasing number of elder exploitation cases wherein a person in a confidential relationship (son, daughter, caregiver, close friend) uses this relationship of trust to influence an elderly individual to execute dispositive instruments leaving the bulk of the elderly individual’s estate to the “trusted confidant.”

The preemptive solution that the law provides is a guardianship over the elderly individual. Oftentimes this is more restrictive than necessary. Upon the elderly individual’s passing the heirs can always bring suit to challenge the validity of the dispositive documents based on theories of undue influence, fraud, lack of capacity, etc. However this is not an ideal remedy as it will take a determination of the issues through trial or an evidentiary hearing and the alleged undue influencer may have already made off with the elderly person’s estate.

California has adopted a statute as part of its probate code that nullifies donative transfers to specified individuals (i.e. the person who drafted the dispositive instrument or persons related to the drafter, any person who is in a fiduciary position over the donor or related to the fiduciary, and a care custodian of the donor or any related person). There is an exception allowed where the elderly donor consults with an independent attorney and that attorney attaches a certificate to the dispositive instrument or a court of competent jurisdiction may also entertain evidence regarding the nature of the transfer and may find that the transfer was not the product of undue influence, fraud, or that the donor lacked capacity. Although this approach is not perfect, it is effective in shifting the burden to prove the validity of questionable transfers to the donee/alleged undue influencer.

-Attorney Bob Morris

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