Undue influence

Undue influence is a legal doctrine that is used to describe the use of one’s power that arises out of a special relationship to coerce someone to make a decision not derived from their free will. This type of relationship can occur very commonly from an adult caregiver who may even be a relative. The doctrine of undue influence is most commonly used in an attempt to void a contract or an estate planning document.

For instance, as people get older they may have to rely on an adult child for care and basic living assistance. Moreover, people tend to endure diminished mental capacities as they get older. When older people who rely on others for care are presented with documents to sign, perhaps even while lying in a hospital bed, by the very person on which they are relying for companionship and assistance to survive, they often lack the independence to refuse such requests.

Unfortunately, I have assisted several clients who were disinherited by a last-minute will that was orchestrated by another family member attempting to get a greater inheritance than was originally intended. Luckily, in each case my clients were able to recover their intended inheritance. No one wants their will or estate to be the subject of prolonged litigation and have their legacy be tarnished by family fighting.

The best way to prevent this from happening is to have a system of checks and balances in place. As you get older, get your advisers more involved. Having an attorney, a financial adviser and a CPA all working together with you, and other important family members, can provide an additional layer of protection against undue influence. Another way to protect oneself is to appoint at least two people to become the co-power of attorney and the successor co-trustee of one’s trust. This will prevent any one person from secretly signing off on any inappropriate transitions.