Estate and Trust Dispute Center of Ohio

Join Adam Fried, co-chair of Reminger’s Estate, Trust, and Probate Litigation practice group, for a five-part blog series exploring what makes for a good case or bad case to challenge inheritance rights. To read the full e-book, click here.

In part two, we looked at the problems with proof in establishing or defending against an undue influence claim. Now, we will review red flags, the existence of which can increase the likelihood of success in a challenged inheritance claim.

Part 3 - Red Flags and the Misuse of Trust

1. Is the beneficiary a person in the trust or confidence of the donor? A person who is trusted is in the position to influence. If a fiduciary or confidential relationship can be established by factual evidence, then a skillful attorney who understand the concept of shifting evidentiary burdens, can force the recipient of the person in the position of trust to show that their conduct of free from the exercise of undue influence.  In essence, a rebuttable presumption that undue influence was exercised is created when a fiduciary or confidential relationship can be shown and related to the transaction at issue. 
2. Is the transaction unnatural? A transaction that falls outside the expected and known relationships of decedent will be, generally, scrutinized more deeply.  But establishing or defending a claim that the transaction was unnatural requires the ability to factually build context through skilled advocacy such as questioning and story building.  For instance, a will that benefits a maid, as opposed to a child, may seem unnatural on its face, but if the relationship is longstanding and based on friendship and respect, then it could be demonstrated to be natural and expected.
3. Acts of Procurement – did the beneficiary assist in the procurement of the will? Facts such as locating and making a connection between the settlor/testator/donor and the lawyer or making sure the person gets to the lawyer’s office to sign the will or trust, would be assisting in the process in which the beneficiary benefits.
4. Creating a siege mentality – A bad actor, intent on stealing your inheritance, often creates a false construct wherein the target is led to believe that the world is out to get the person or his/her assets and that the person who ultimately benefits is the savior. This kind of manipulation is often seen when the testator has a fear of going into a nursing home and the beneficiary works to convince him that the “bad child” will stop at nothing to put the testator into a nursing home, which would happen but for the intervention of the beneficiary. 
5. Isolation – through acts of control, the beneficiary works to sever relationships with the parent from those who have been in that parent’s circle of life. Often, we see circumstances where the testator is moved to new lawyers, new doctors, and seems to never be available to answer the phone or come to the door.  The bad actor will typically, but not always, move in with the benefactor and screen calls and refuse to allow for private conversations. 
6. Financial exploitation – greedy people who seek to claim inheritance destined for others are often unable to keep their hands off the money. It is not unusual to see gifting or excessive and uncharacteristic cash or teller withdrawal.
7. Confusion and financial gymnastics – It is common to see the creation of multiple bank accounts and to see inter-account transfers. These transfers are often done to confuse and disguise from the owner that assets are being manipulated, stolen, or the extent to which any particular object of affection will receive.  Frankly, if the owner gets confused, they might falsely believe that the person being disinherited is being provided for, thus discounting the act of disinheritance.
8. Recent death of a loved one – grief and depression go hand in hand with need and dependency. A person who is dependent is particularly susceptible to the exercise of undue influence.
9. Abrupt changes to a long-established estate plan- a life to of planning changed for reasons that seem to make little sense and which appear to be inconsistent with the true relationships the testator has with members of his family should be highly scrutinized. Sometimes, the rational for the changes are irrational or based in false beliefs.  The changes are coupled with new lawyers who lack knowledge of the client’s history and who have failed to investigate the reason for the change in attorney. 

The red flags described above are not exhaustive. If they, or other incidents of wrongdoing are present, if present then the existence of them can be used to demonstrate undue influence even if there is no direct evidence of the interchanges between the beneficiary and benefactor.  Great skill is necessary to establish the context of wrongdoing or the fidelity of the transactions at issue.  If a lawyer drafted the plan, his or her credibility is crucial to upholding or crashing the plan and you want a lawyer who has investigated lawyer estate planning files and knows how to attack their credibility through fact gathering and cross examination.  Our estate litigation team at Reminger is available for consult.

In Part Four, I will describe the economic considerations that go into a decision as to the value of pursuing a claim for undue influence.