The high profile will contest trial over the estate of New York philanthropist Brooke Astor has brought to the national stage a common form of financial exploitation. The Manhattan District Attorney accused Ms. Astor’s son, Anthony D. Marshall, and her former attorney of exerting undue influence over Ms. Astor to arrange for her Last Will and Testament to be amended to give her son control over a significant portion (approximately $60 million) of her estate that he had previously not been entitled to. This bitterly contested case came to a conclusion recently when the jury found the son guilty of criminal charges that he defrauded his mother and stole millions of dollars from her as she suffered from Alzheimer’s disease. The jury also convicted the decedent’s estate planning attorney of a series of fraud and conspiracy charges, as well as one count of forging Ms. Astor’s signature on a codicil.
Most cases of financial exploitation of senior citizens do not rise to the financial level of the Astor case nor do they typically result in criminal prosecution of those involved. And while criminal prosecutions of estate planning attorneys who somehow participate in these events with ill-intentioned family members are indeed rare, we believe that the public will see a rise in these types of prosecutions. Why? The answer is simple. For us trust and estate lawyers who watch these events unfold, the unfortunate truth is that civil remedies (i.e. will contests) are hard for many clients to privately finance. Also consider that the National Center for Elder Abuse estimates that nearly five million senior citizens are victimized by financial exploitation annually. And one of the most common forms of exploitation is the use of undue influence to coerce an elderly person to change their estate planning documents!
Undue influence is defined as the use of improper constraint, urging or persuasion to induce a decedent to dispose of her property in a manner that she would not have done if left to act freely. The burden of proving such influence typically lies with the opponent of a will (or trust instrument) offered for probate, but in cases where constructive fraud is present, the burden shifts to the proponent of the will to prove that there is no undue influence.
A DIFFICULT TASK
Discovering (and proving) that an elderly person has been unduly influenced can be a very difficult process. In most cases, the influence is not overt and open to public scrutiny. It is often poignantly noted that there is no video camera monitoring surreptitious activities of care-givers, thus making the task of uncovering and rectifying such behavior that much harder. To make matters worse, it is usually left to those heirs who have been negatively impacted by the instrument in question to initiate legal proceedings, hire competent attorneys out of their own private assets and prove that undue influence existed. To prove undue influence, one must demonstrate that the beneficiary had some type of confidential relationship with the decedent and actively procured the will or trust instrument. Challenging a will or trust can also be difficult because the “objectants” will almost certainly have to rely on circumstantial evidence to prove their case.
Thus, undue influence typically takes the form of an insidious and subtle pattern of behavior that preys on the weak and seeks to replace their true intentions with those of the person controlling the decedent.
WHAT TO LOOK FOR
There are several essential elements that must be present for a court to invalidate a will based on undue influence. First, the influence must be so overpowering that the decedent cannot exert free will of their own. For example, a proponent who provides advice to a decedent as to how her estate should pass would not be exerting undue influence unless the decedent was incapable of making the final decision as to how to dispose of her estate. On the other hand, if the proponent continually pressured the decedent to leave her estate in a certain manner so repeatedly that the decedent finally relents to end the pressure, undue influence is likely to be found.
Second, a person who is accused of undue influence must be shown to benefit from the will in question and must receive benefits above and beyond what he would be entitled to otherwise. In cases where a sibling, spouse or child is accused of unduly influencing a decedent, claims of undue influence can be used to rebut bequests that the proponent would not otherwise be entitled to absent the alleged wrongful conduct.
Finally, the decedent must be shown to have acted in a manner that he or she would not have absent the alleged influence. The elderly are particularly susceptible to outside influence, but age alone is not sufficient to establish that they acted outside their own free will. Mental and physical health, the extent to which the decedent’s estate plan is changed and other factual determinations will be considered to determine whether the decedent’s actions were unduly influenced.
Preventing the elderly from succumbing to undue influence relies on the hope that knowledgeable attorneys and family members are vigilant and attuned to understanding the subtle warning signs when these issues arise. If you have any questions concerning this article or would like to discuss a potential case, please reach out to us at SGR.