In December 2013, I provided an article as to the legal elements of undue influence. Having successfully defended against such a claim, this article provides some guidance as to what I have found judges may look at in determining whether or not the person that gave the gift was subject to undue influence so as to have the gift voided. The gift may have been made outright or upon death.
Usually these undue influence cases arise after the person that provided the gift has already died and therefore are not available for either a psychiatric examination or to testify as to the reasons for the gift. In such cases, some of the most critical evidence comes from the people who interacted the most with the decedent frequently around the time the gift decisions were made; both with him alone and while the alleged undue influencer was present. These individuals could be neighbors; those who participated with the decedent at regular social gatherings such as playing cards at the local senior center; or regular caregivers such as the home health providers. If those individuals heard the decedent express frustration with his relatives over their lack of attention towards him and his expressed affection towards the person now accused of undue influencing him, and those sentiments were shared by the decedent when the alleged undue influencer was not present, this would detract from the argument that he was coerced to the extent to effectively take away his free will when making the gift. Furthermore, the mere fact that the decedent would go without the undue influencer to social functions, such as a local senior center and interact with neighbors, could be evidence that the alleged undue influencer was not attempting to isolate him as part of the plan to manipulate him. If, on the other hand, the alleged undue influencer removed others from the decedent’s life, such as interactions with neighbors, made the decedent dependent upon that individual’s care, or bullied or threatened the decedent such as suggesting that if they did not along the decedent would have to go into a nursing home, such evidence would be supportive of an undue influence claim.
The decedent’s understanding of his financial affairs and what he did to provide gifts to the alleged undue influencer is also relevant. By way of example, if the decedent had control over all of his assets right up to death and therefore could prevent the alleged undue influencer from receiving assets up to his death if the life time relationship changed, this evidence would detract from the allegation that he was coerced or manipulated into providing these gifts, such gifts could be “transfer on death” (TOD) gifts or transfers through a Trust or Will, payable after the decedent passed. Likewise, if the decedent irrevocably gifted assets out of his name into the alleged undue influencer, that could be evidence to prove undue influence. Such a gift could be a deeding of the decedent’s house into the alleged undue influencer’s name and him as “joint tenants with rights of survivorship” or the decedent deeding the home to the alleged undue influencer, merely retaining for himself a life estate. In both of those circumstances, the decedent cannot later change his mind if the relationship sours.
If the decedent, rather the undue influencer, is the one who is reviewing his assets and making investment decisions, that would tend to detract from the argument that he is not in control and the alleged undue influencer is manipulating or coercing him.
The decedent’s physical and mental health also has an impact in any undue influence claim. An individual who is not ambulatory is more susceptible to being preyed upon by a potential undue influencer because he may rely on that person as a caregiver. Also an individual suffering from certain mental health problems may have his free will diminished which results in him more easily being coerced or manipulated.
All of the above factual information would be considered by the judge in determining whether or not there was undue influence to void one or more gifts. This case can be factually complex and after information is learned in pretrial discovery mediation often makes sense. See: Negotiating Resolutions of Disputes Over a Deceased Relative’s Estate.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].