Sibling Moved in and Parent Changed Will: How to Prove Undue Influence or Elder Abuse
By Lane V. Erickson, Idaho Estate Planning Attorney
The situation happens all too often. I’ll have a client come in to talk with me about the fact that a sibling is either messing with or has messed up their parent’s estate plan. The situation is usually that the sibling moves in with the parent or moves close to them so they can exert a great deal of influence. The parent is usually susceptible to being influenced either because they are physically or mentally weak or incapacitated.
When this situation arises, what often happens is the parent’s original estate plan which was created when they had control over their own lives, is radically altered or changed to be more favorable to the sibling who is influencing the parents. All of this is usually done under the guise of the sibling claiming that they are helping the parent.
Having been an estate planning attorney now for more than 20 years I’ve seen this situation arise numerous times. Our goal as the premier Idaho estate planning Law Firm is to assist each of our clients in creating their own customized estate plan. Additionally, we work with our clients to keep these individualized plans updated to meet all of our client’s current needs. We also assist our clients through the probate process and when necessary, in contesting or making sure that a parent, family member, or other loved ones’ true intentions are carried out.
The purpose of this article is to talk about how you go about doing this. It often requires you to prove that there was coercion, undue influence, or elder abuse of some sort that changed the true intentions of the person who died.Testamentary Intent
The best place to start when talking about these things is with testamentary intent. This is a fancy legal word used by estate planning attorneys to simply say that the last will and testament or other estate planning documents contain the expressed wishes and intentions of the individual before they passed away.
Testamentary intent is usually contained within these legal documents. The reason for this is that the person usually has consulted with their attorney, talked about what it is they want to accomplish, discussed the several options available to obtain the desired results, and then chosen to sign their name to the documents that state and represent their final wishes. These documents are usually prepared by an estate planning attorney, and then witnessed and notarized by non-related and non-involved objective individuals who assess the condition of the person signing the document so they can declare they were not influenced by outside sources.
When a Will or other document is created in this fashion, it becomes self-authenticating, self-proving, and is very difficult to disprove. But it still can be done.Coercion or Undue Influence
The reality, however, is that in most instances, undue influence occurs when these formalities are not followed. In other words, if the bad sibling has the parent do a handwritten Will that is then dated and signed but is not witnessed and is not notarized, this could be used as proof of the fact that it does not actually contain testamentary intent.
Other evidence of coercion or undue influence would include a doctor’s medical records and/or diagnosis of the individual’s physical or mental health and abilities. In other words, if a person has been affirmatively diagnosed as having advanced Alzheimer’s disease, and the person’s Will or other estate planning documents are changed after this diagnosis, this is evidence that the person lacked the required legal capacity to have testamentary intent. Without legal capacity, or testamentary intent, any new estate planning documents would have no legal power. This is because it could be proved that testamentary intent didn’t exist.
Other types and kinds of evidence that may be used include any other written documents such as emails, birthday cards, letters, or the like where the individual expresses their intent but then their Will or other estate planning documents, that were recently changed, contradict that intent. When this happens, a court will look at the totality of the circumstances, including any evidence of the individual’s health or capacity before determining whether the estate planning documents are valid and enforceable.Elder Abuse
Elder abuse is a related but much more serious issue. It could include the physical, mental, emotional, or other type of abuse or neglect of an individual who is older and lacks the ability to care for themselves either physically, mentally, or emotionally. In many respects it is similar to child abuse because the victim is usually vulnerable, and often helpless. It’s a tragedy that this type of abuse exists at all but the reality is that it does.
Evidence and signs of elder abuse include outward vocal or physical abuse, or signs of anxiety and fear by the victim when they are around the abuser. There could also be actual physical signs as well. These could include physical injuries that are hard to explain, or repeated injuries that don’t seem to heal. They could also include outward signs of fear or flinching when the victim is around the abuser.
In almost all communities there is an elder abuse hotline that can be called whenever anyone suspects that elder abuse could be taking place. When this happens, that investigation is completed by trained professionals who can then assess the situation to determine whether elder abuse exists, and other steps need to be taken to protect the victim.
If you have questions or concerns about any of these issues, we encourage you to contact us for a free 30-minute consultation where we can discuss your concerns and answer your questions.Enlist An Idaho Estate Planning Attorney To Help You
Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation. You can also email us directly at firstname.lastname@example.org or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.