Join Adam Fried, co-chair of Reminger’s Estate, Trust, and Probate Litigation practice group, for a five-part blog series exploring what makes for a good case or bad case to challenge inheritance rights.
- Part One – Disappointment, Disinheritance and Disputes – What Should I Do?
- Part Two – The Problems with Proof
- Part Three – Red Flags and The Misuse of Trust
- Part Four – Economic Considerations of Inheritance Dispute
- Part Five – What to Consider When Selecting Counsel
Part One – Disappointment, Disinheritance and Disputes – What Should I Do?
Call it what you want: elder abuse, financial exploitation, undue influence. Family members, caretakers, and scam artists, for the potential of a dollar, will work to steal your inheritance -- no question. Many people have told me, when they hear what I do for a living, that when a person signs a will, designates a beneficiary, or signs a trust, there is nothing that can be done about it. The general belief that all wills, trusts, and beneficiary designations are not subject to challenge is a great fiction perpetrated on loving children who find themselves disinherited for reasons that make no sense.
I am a lawyer who litigates inheritance rights. Hundreds of cases under my belt. I have brought claims on behalf of good and caring kids. In deposition and trial, we demonstrated that the circumstances leading to the disinheritance was instigated by deplorable people insistent on gaining unearned financial wealth for reasons spanning from greed to self-entitlement and, yes, simple jealousy.
On behalf of good children, I have defended baseless claims brought by undeserving children who, for obvious reasons, were excluded from a will or trust. Believe me when I tell you that some wills, trusts, and beneficiary designations are executed because of bad conduct and when the bad conduct can be demonstrated, a jury or a judge, will gladly set things right.
Character and Credibility
Not all disinherited children are sympathetic human beings worthy of court intervention. Some children truly do disappear, leaving their parents to fend for themselves. Those children have little information as to what occurred and, worse, cannot demonstrate the existence of a loving, albeit long distance relationship for reasons of lack of contact. Jury’s and judges care about the wishes of the testator (parent) and, if a child is going to come to court demanding that a gift, will, trust or beneficiary designation be voided, he or she would be well served to have proof of a relationship such as phone calls, e-mails, letters, or text messages.
The stark truth is that a child who has been disinherited will have a much harder time proving that a will is the product of undue influence if a jury believes that the parent had good reason to disinherit the child. Lack of contact, misuse of the parent’s assets, and an overall disagreeable nature of the child, as examples, can be used to show that the decision to disinherit was of the parent’s own free will and volition.
The test for undue influence is not complicated: the disinherited child needs to prove that the parent, by reason of physical or mental conditions or other dependency, is susceptible to the exercise of undue influence. Medical conditions, such as dementia, Parkinson’s, depression, memory loss, or simply the inability to write checks or pay bills without assistance, can form the basis to establish a loved one is susceptible to manipulation. If a person who engages in the act of transferring wealth, either via lifetime transfer or testamentary vehicle such as a will or beneficiary designation is susceptible, then the disinherited child need prove that the bad actor had the opportunity and did, in fact, exercise undue influence over the grantor/testator/settlor. The elements of the “cause of action” of undue influence, however, only describe the legal rules and do little to inform as to what kinds of facts are helpful to prove or disprove an undue influence claim.
Undue influence is, at its core, the act of convincing a person through inappropriate means to provide benefit to the person benefiting from the conduct. Some courts have described the conduct as that which subverts the mind of a person susceptible to the influence. All transfers are the product of some influence and not all influence is undue.
A child, for instance, who stops over at mom’s house to see how she is doing and brings her a piece of chocolate cake, is not exercising undue influence. A will created for the stated reason that mom was thrilled that her daughter came over to visit will not be set aside on the grounds of undue influence. But, if that same child who comes with cake, and over coffee, shares a false tail about the disinherited person in the guise of claiming an inheritance, then the act of influence could be demonstrated to be undue. The more fragile the donor, the less evidence that might be needed to successfully challenge an act of disinheritance.
Next week, we will examine the proof necessary to establish an undue influence claim.
- Fairness and Fees in Inheritance Disputes
- Say What You Mean: Don’t Bet the Farm on Imprecise Language
- Should I Challenge My Inheritance? Part Five: What to Consider When Selecting Counsel
- Ohio Courts to Estate Creditors: We REALLY Mean Six Months!
- Should I Challenge My Inheritance? Part Four: Economic Considerations of Inheritance Dispute
- Should I Challenge My Inheritance? Part Three: Red Flags and The Misuse of Trust
- Should I Challenge My Inheritance? Part Two: The Problems with Proof
- Should I Challenge My Inheritance? Part One: Disappointment, Disinheritance and Disputes – What Should I Do?
- No Exceptions: Ohio Supreme Court Holds that Voiding Statute Applies to all Wills Admitted to Probate
- FINRA Adopts Rule 3241 to Address the Ability of Associated Persons to be Named as Beneficiaries of or Executors, Trustees or Attorneys-in-Fact for Customers