Help mom and dad with estate planning, but know your boundaries under the law

Avoiding Undue Influence, as an Adult Child, Assisting Parent’s Estate Planning

Writing a will is a process most people view as a terrible chore, but it is one that is necessary. The process may get further complicated when one spouse has already passed away and the adult children of the surviving elderly parent assist in managing and dividing finances. This has become more of a reality as more and more middle-aged children are caring for elderly parents. Perhaps, not surprisingly, this phenomenon is more pronounced in Florida, which according to the U.S. Census Bureau, leads the nation in terms of greatest share of its population aged 65 and older in 2010.

This scenario can lead to issues in estate planning especially if the parent is experiencing diminished mental capacity where too much of an adult child’s influence over estate planning decisions of the parent may bring legal problems such as legal charges of “undue influence.” Every state has its own undue influence laws to address these types of issues not only in the context of children’s undue influence on parents but others outside the family, such as a girlfriend or caretaker. In Florida, in order to raise a presumption of undue influence, a petitioner must show “(1) the existence of a confidential or fiduciary relationship between the decedent and the procurer of a will; (2) the active participation of the procurer in the planning and drafting of the will; and (3) the realization by the procurer of a substantial benefit under the provisions of the will.” These elements in Florida are found in common law as opposed to codified statutes so the court’s decision will be based on how convincing the evidence is in a case.

Undue influence only exists if there is a relationship of trust for ultimate financial gain between the individual making the will and the perpetrator: the prosecution must present evidence of deceit used to swindle money and assets. This evidence could include:

1. Dramatic changes to an estate plan;
2. Lots of changes over a short period of time;
3. Gradual changes that favor the perpetrator;
4. Disinheriting other children or close family members;
5. Sudden inter vivos (during life) cash advances or transfer of assets to the child;
6. Adult child with a history of deceitful conduct, perjury, or fraud.

However, simply having a conversation with your parents or even assisting them with their estate planning does not by itself amount to undue influence. Fortunately, there has been some guidance from the District Courts of Appeal in this matter:

Evidence merely 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. Where communications and assistance are consistent with a “dutiful” adult child towards an aging parent, there is no presumption of undue influence. Ultimately, “[i]f and adult child…cannot talk to his parent…then we have finally demolished the family ties of love and natural affection.

Adult children should always protect themselves against allegations of undue influence but should also remember that taking care of an aging parent is not grounds for allegations of “lack of testamentary capacity” / undue influence. Adult children should always strike a balance and also considering giving minimal advice on estate planning issues and leave estate planning to trusted professionals. Those who have questions regarding whether undue influence has occurred should consult an attorney. Please do not hesitate to contact the attorneys of Chepenik Trushin LLP, Bart Chepenik, 305-613-3548, Brad Trushin, 305-981-8889 who are ready, willing, and able to assist with your wills, estate planning, powers of attorney, tax, Elder law or Trust and probate litigation needs.

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