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08/08/13 It's The Law: Adult Child Caring For Parent Does Not Equal Undue Influence

It's The Law

Adult Child Caring For Parent Does Not Equal Undue Influence



My wife took care of her mother for the last five years of her mother's life. She took her everywhere, made sure her meals were cooked, and it was basically a full-time job. Her mother left her almost her entire estate. Now, her brother and sister are suing to invalidate her mother's will on ground that my wife exerted undue influence. Can they do that?


Beneficiaries getting less than they hoped for often scream undue influence when someone close to the decedent gets a bigger share. In some cases, the claim is accurate. But, many times the claim merely leads to expensive and unsuccessful litigation by those seeking a bigger share of the estate pie.

Undue influence is more than simply influence. It must rise to the level of over persuasion, duress, force, coercion or fraud to such an extent that the free agency and will power of another is destroyed. In other words, undue influence makes a person unable to act intelligently, understandingly, involuntarily and substitutes the will of another for that of the affected person. That can be difficult to prove. If the influence is not so over whelming, it is not undue and will not invalidate a will.

Undue influence is presumed when a person in a confidential relationship with the decedent was active in obtaining or preparing the decedent's will and is a substantial beneficiary under the will. The recent case of Kester v. Rocco addresses these issues in some detail.

In Kester, the decedent's will left her probate estate equally to her five children. The decedent and her daughter, Glenna, had a close relationship and Glenna apparently helped her mother. Glenna took notes about her mother's intent with respect to distribution of her estate (referred to by the Court as a "to-do list"). Ultimately, the decedent changed beneficiaries on certain accounts so that Glenna and 2 of her brothers received those accounts when mom died. The Trial Court ruled that Glenna was guilty of undue influence and ordered her to repay her ill gotten gains. The Appellate Court reversed.

The Appellate Court explained evidence that a parent and an adult child had a close relationship and that the younger person often assisted the parent with tasks is not enough to show undue influence. Such interaction is consistent with a "dutiful" adult child to an aging parent and there is no presumption of undue influence. The Court further explained that if an adult child cannot talk to his parent, "we have finally demolished the family ties of love and natural affection."

The Appellate Court discounted evidence that Glenna had actively procured the change in beneficiary designations on the accounts. Glenna was not present on any occasion when the decedent created or changed the financial accounts in dispute and there was no evidence that Glenna had given her mother instructions regarding any account changes, had alerted any bank employees prior to the changes or otherwise participated.

The Appellate Court was also not impressed by the to-do list prepared by Glenna and her mother concerning her mother's accounts. It was unsigned, undated, unwitnessed and appeared to have been prepared about the same time as amendments to the will in question. The Appellate Court disagreed with the trial judge that the to-do list was some type of direction from the decedent and that Glenna had a fiduciary obligation to follow those directions.

As further support for reversing the trial judge, the Appellate Court noted there was much testimony that the decedent had good mental capacity and strength up until the time of her death and acted without confusion or anxiety. Evidence also showed that the decedent had distributed some of her assets prior to her death to siblings other than Glenna. The Court ruled there was insufficient evidence of undue influence.

These cases start with the appearance of impropriety, but are factually driven. They can be expensive to pursue and certainly emotionally draining. Because presentation of the facts and evidence will control the outcome, good counsel is required. I recommend you not let your wife rely upon her honesty and belief that right will prevail without a good attorney beside her.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorrislaw.com.

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