We are often concerned that our elderly parents or grandparents, as the case may be, might be subjected to scams or manipulated into providing gifts to people. If your parents are living alone, it is important to ensure that they are up to date on the most recent scams; whether internet or otherwise. For example, in New Hampshire, we have had several incidents where contractors will take a deposit and not perform the work. A review of the Better Business Bureau records and checking around to see the contractor’s reputation on behalf of your parents makes good sense.
Your parents could also be manipulated into giving gifts to others. In New Hampshire, as with most other states, there is a law of undue influence. Undue influence can result in rescinding or undoing a gift or transfer. For there to be undue influence, it must amount to force or coercion that alters your parents’ free will and it is more than mere influence of affection. For example, if one of your parents passes away and the widowed parent strikes up either a romantic relationship with another individual or develops a strong relationship with a neighbor who watches out for your parent, the courts do not look at a “but for” analysis wherein they merely consider that if the significant other or neighbor were not in your parent’s life that your parent would have left his money to you. An example of when undue influence was shown was when the elderly person who transferred the assets was reliant on the recipient for banking services, preparation of checks, and payment of bills. Another example was when the recipient was actually the trustee of a trust benefitting the elderly person who only spoke of financial matters with that recipient and did not have an understanding of financial or legal concepts at the time they made the transfer. If you are out of state and your parent, living locally, relies heavily on a significant other or neighbor to take care of him and yet he is of sound mind when he makes the transfer of assets either through a will or in his lifetime to that person, it is not likely that that court would find that asset transfer should be overturned. Of course, if the parent was still alive when you are challenging the transfer and agreed with you that he had made a mistake and that they were manipulated into making the transfer, the case is a much stronger one. However, usually undue influence cases result after your parent has died and you are considering attempting to overturn the transfer made either during his lifetime or at death transfers that were made by your parent to the recipient.
I have been involved in several of these types of cases representing, at different times, both people trying to undo the transfer and defending the transfer as a valid and have resolved these cases both through negotiated resolution, including mediation, and through full litigation. I would be happy to talk to anyone who is considering making such a challenge or transfer or expecting to have to defend a challenge of such a transfer.
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].