Understanding Undue Influence in Houston, Texas
More and more older people are expected to wind up in nursing facilities or at-home care arrangements, away from the careful eyes of their family members, as the number of baby boomers who are retiring, continues to rise and the burden of elder care and child care rises for middle-class families.
When this occurs, the risk of undue influence over an older family member’s estate increases dramatically. In the absence of loved ones, new persons are tasked with caring for those family members and maintaining communication with them.
As a result, litigation involving undue influence in financial decisions and estate planning has increased dramatically in recent years, and our experienced probate attorney expects this trend to continue. If you have any questions concerning what is undue influence, contact Chargois Harper.
What is Undue Influence?
Undue influence is defined in Texas by a three-part test:
- There must be the presence and exercise of power over the old person in question.
- The influence must undermine or dominate the old person’s thinking when it comes to trust issues.
- The influence must have resulted in choices or modifications to an estate or trust that would not have occurred if the influence had not been there.
Undue influence can only be proven if all three of these conditions are present. Essentially, this test demands proof that someone took advantage of your family member’s elderly state of mind and amended a Trust or Will for their profit.
Your father, for example, may have established a trust for you to obtain a valuable coin collection that he owns. He is cared for 24 hours a day by in-home caregivers, one of whom is aware of his coin collection.
Over time, that provider tells your father how much he enjoys coins and how lovely having a collection would be. The provider informs your father that until he gives up the coin collection, he will no longer be taken care of.
He eventually persuades your father to hand up the coin collection to the provider instead of keeping it in trust. This is an example of undue influence.
While undue influence is most commonly associated with third parties that provide outside services to a family, it can also occur between family members. Maybe your sister wants the vacation house you’ve been given, and she’ll attempt to persuade her elderly mother to alter her mind about who gets it. Outside strangers aren’t the only ones that gain from undue influence.
What are Some Undue Influence Examples?
Due to the legal system’s interest in seeing a wronged party made whole and ensuring that vulnerable parties are protected, courts frequently provide undue influence as a legal remedy. There are several forms of relationships in which undue influence may be present.
However, the following are some of the most prevalent undue influence contract situations where one party may be exploited:
When the parties share a familial relationship, it is one of the most prevalent situations of undue influence being exercised over a susceptible person. Close or distant family members, for example, may take advantage of an older member of their family to obtain a financial benefit.
Financial exploitation of the elderly is highly widespread, with one out of every twenty older persons reporting it. The following are examples of close familial relationships:
- Husband and wife
- Parent and child
When the two parties have a legal relationship, undue influence is also a regular occurrence. Attorney-client or trustee-beneficiary relationships, for example, can also result in the presumption of undue influence if the attorney or trustee takes advantage of the party to whom they owe a fiduciary duty.
Doctors, like lawyers, have a variety of fiduciary duties to their patients, including:
- The duty of loyalty
- The duty of care
- The duty of good faith and fair dealing
- The duty of competence
- The duty to avoid conflicts of interest
In addition to the aforementioned relationships, undue influence can also arise when one party is more knowledgeable or educated than the other and uses that advantage to compel the other party into signing a contract.
Importantly, a court must decide that one party was susceptible and that the other party used those vulnerabilities and their superior position to force the other party into signing the agreement.
When one party believes they have no option but to agree to a contract owing to the dominant party’s influence, courts will frequently invoke the undue influence concept to protect the victim party by declaring the transaction voidable.
Why Does Undue Influence Make a Contract Voidable?
A victim party may seek to have a contract voided owing to undue influence, as stated above. Because there are many circumstances where the contract is beneficial to the party accusing the other party of taking advantage of them, undue influence makes a contract voidable rather than void.
A child, for example, may exercise undue influence over their parents to persuade them to invest in a certain firm. If the investment was fair and advantageous to the parent party, the court will enable that party to maintain the contract or cancel it and get a refund of the initial investment.
What are Signs of Undue Influence?
Signs of undue influence can take many forms. Some of the indicators of undue influence in a court of law may be characterized as follows:
- Isolation from friends, family, or a social support system
- Dependency upon the abuser
- Abuser’s use of the victim’s financial assets
- Psychological abuse, threats, and intimidation
- Physical violence, including threats of physical violence
- Often the abuse is perpetrated against someone with diminished mental capacity or physical abilities
How can I Prove Undue Influence?
To establish undue influence, the victim must often establish several legal factors. In most cases, the victim party must prove four elements to establish that undue influence occurred:
- The victim must demonstrate why they were vulnerable to someone else’s influence, such as proving one of the above-mentioned relationships or that they were recently traumatized or hurt.
- After then, the victim must describe how the other party took advantage of them in the scenario.
- The victim must next show that the other party took advantage of the situation, most commonly by manipulation or coercion.
- There must be proof of the contract or agreement that the dominant party pressured the innocent party into and that injured the innocent party financially or otherwise.
The individual claiming undue influence must provide proof to support their allegation. The evidence must establish that the influence impaired the testator’s free agency and that the Will created represents the intentions of the one exerting the influence for the influence to be “undue.”
Simply asking someone to name them as a beneficiary in their Will, for example, is unlikely to fulfill these criteria. When assessing undue influence, probate courts will consider several factors, including
- The circumstances surrounding the execution of the Will instrument.
- The relationship between the testator and the beneficiary and any others who might be expected recipients of the testator’s bounty.
- The motive, character, and conduct of the persons benefited by the instrument.
- The participation of the beneficiary in the preparation or execution of the instrument.
- The words and acts of the parties.
- The interest in and opportunity for the exercise of undue influence.
- The physical and mental condition of the testator at the time of Will’s execution, including the extent to which she was dependent upon and subject to the control of the beneficiary.
- The improvidence of the transaction because of unjust, unreasonable, or unnatural disposition of the property.
In estate planning, for example, undue influence might arise during the preparation of a will. When contesting a Will based on undue influence, the contestant must typically demonstrate the following:
- That there was an undue influence present, which had the effect of overpowering the testator’s intellect.
- That undue influence resulted in a Will that would not have been created if it hadn’t been for that undue influence.
What are the Different Ways I Can Do to Avoid an Undue Influence Claim?
If you are the primary caretaker for your old parent or if your elderly parent resides with you, here is a list of things you must do to protect yourself from charges that you influenced your parents unduly.
In the shadows, undue influence, and especially the suspicion of undue influence, grows. If your siblings are unaware of what is going on with your parent’s health care and financial problems, they will become increasingly suspicious. Share your financial and medical records with your siblings.
Keep a Paper Trail
Keep a receipt for every penny you spend from your parents’ money. If your parents prefer to pay in cash, make sure you acquire a receipt for each cash transaction. If checks are made, make sure there is written proof of the check’s purpose, especially if the check is written to you, your spouse, or someone else for whom the purpose of the check is not evident.
Do Not Use Cash
Many elderly people prefer to do business only with cash. Encourage your parents to use a debit card or write cheques instead of cash. If you neglect to save receipts, a debit card purchase will at least indicate the payee on your bank statement. If your parents insist on paying with cash, make sure to save all receipts.
Document Gifts or Avoid Gifts Altogether
Gifts, like cash, can bring complications. Your parents might wish to gift you a few hundred dollars as a token of their appreciation for your efforts. They may also present you with a piece of jewelry.
It is better to avoid receiving presents before death, but if they insist on giving you something (whether valuable or sentimental), you must protect yourself.
Make a written record of the present and have them sign it. Document what the gift is when it was given to you, and, in the best-case scenario, a statement explaining why they are giving it to you.
More crucially, have an impartial third party (not a family member, such as an attorney, and ideally not a friend) sign a declaration concerning the gift. It would be most effective if the third party witness spoke with them about the present outside of your presence and signed a statement explaining why they are giving it.
No Joint Bank Accounts
If your parents suggest that they should put your name on their bank account, tell them no. When one of the joint owners of a bank account dies, the law presumes that the remaining joint owner is the account’s sole legal owner and has no legal responsibility to share the account with anyone else.
Instead of joint bank accounts, they could consider adding your name as a power-of-attorney to the account, or they might create a revocable living trust with you as a trustee and place the account in the Trust.
Proper Estate Planning
Hopefully, they formed a relationship with a skilled estate planning attorney and signed power of attorney forms, as well as maybe created a revocable living Trust, long before you took full-time care of them or had them live with you.
These facts will be used as evidence that you unduly influenced them to make the power of attorney, Will, or Trust that benefits you. If you find the attorney for them, set up the appointment with the attorney, drive them to the appointment, or sit in on the consultation and sign appointments with them and the attorney, these facts will be used as evidence that you unduly influenced them to make the power of attorney, Will, or Trust that benefits you.
Be helpful, but not to the point of becoming overbearing. If they do need help getting to the attorney’s office for the meeting, do not sit in any meeting with them and the attorney. Though they disinherit any of your siblings after they’ve moved in with you or you’ve become their caregiver, you’ll be sued for undue influence, even if you had nothing to do with the choice of procedure.
In any case, even if there are issues, it is far preferable for them to have met independently with a skilled estate planning attorney who can do an objective review of their position and aid them in expressing their wishes.
Do Not Use Fill in the Blank Estate Planning Forms
Your parents are unlikely to want to hire an expensive attorney to handle their estate planning. You can’t compel them to do so. However, please do not exacerbate the matter by purchasing fill-in-the-blank forms from office supply stores.
These documents are frequently filled out erroneously or wrongly signed, notarized, or witnessed, all of which might render the documents invalid.
Do Not Isolate Your Parents
You must provide your siblings access to your parents, including phone, email, and in-person communication. Even though you despise seeing your brother’s face, he will sue you for improper influence if he believes you are keeping him from seeing your parents.
Be exceedingly accommodating and go out of your way to ensure that your parents have time to spend with your siblings or to call them. Keep a note of your parents’ visits with their other children, and keep track of the phone records that reveal calls to and from your parents with their other children to safeguard yourself even more.
What Do I Do When Undue Influence Has Occurred?
According to Texas law, an interested party in an estate, such as a beneficiary, can file a lawsuit to question a Will or Trust. Beneficiaries have two years from the time the estate is in probate to file a claim under Texas’ estates’ statute. This two-year deadline can be extended in rare cases if the claim is based on fabrication or fraud.
The burden of proof is on the person bringing the complaint about undue influence to show that undue influence occurred. When modifications to an estate are made while an aged person is in a vulnerable state, Texas, unlike other states, does not infer undue influence.
The beneficiary must pass the three-part test outlined above to show undue influence. In doing so, Texas courts will consider several issues while determining whether or not there has been undue influence. These factors include:
- The elderly person’s relationship with the beneficiaries and the party accused of undue influence.
- The circumstances underlying the estate document in question’s writing, or the estate’s alteration.
- Whether the person accused of undue influence has the resources and opportunity to do so.
- The elderly person’s mental condition at the time, including whether or not they had any physical or mental limitations that would have made it difficult to resist undue influence.
- Whether the estate adjustment appears odd or contradictory to other components of the estate plan.
- Statements, observations, and other evidence about the elderly person’s intentions at the time of the alteration or transfer.
If a beneficiary can meet Texas’ three-part test by demonstrating these factors, several remedies are possible depending on the circumstances of the undue influence. In most situations, demonstrating undue influence will render the transaction null and void.
For example, if an aged person makes a conveyance to another person that is later shown to be the product of undue influence, the conveyance will be nullified. Similarly, if a Trust or a new Will is established under duress, these documents will be canceled.
It’s conceivable that undue influence won’t completely disrupt estate transfers or probate processes. If undue influence resulted in minor changes to a Trust or Will, some courts have permitted these instruments to be adjusted back to their original meaning rather than being declared void.
How Can a Skilled Probate Litigation Attorney Help Me?
Our professional probate litigation attorney will ensure that Will’s language efficiently distributes the property according to the person’s preferences. We will ask questions and meet with the testator during client interviews to ensure that the provisions in the Will were made freely by the testator.
We can guarantee that the Will is correctly performed at the time of signing so that it will stand up legally during the probate procedure with the least expense and delay. We’ll ask inquiries to make sure the testator wasn’t swayed in any way during the execution.
It is recommended to retain an attorney to assist in the drafting and execution of a Will so that family members may divide the estate conveniently and swiftly when a person passes away. Please call Charges Harper for a consultation if you have any questions concerning the will, execution requirements, Will contests, or what is undue influence.
Get in Touch with a Dedicated Undue Influence Attorney in Texas
Bringing an undue influence lawsuit against a Trust Will can be complex and time-consuming, especially when inter-family claims or conflicts are involved. Before rejecting the will and intent of the elderly senior who requested the Trust or Will, Texas law lays a substantial burden on the beneficiary filing such a claim to demonstrate detailed proof that the undue influence occurred.
This implies that you should take the time to thoroughly collect the evidence you’ll need to back up your claim, as well as speak with family members, friends, and caretakers about what they saw. To get to the bottom of an undue influence issue, it may be necessary to obtain papers or even employ an investigator.
Our professional probate litigation attorney at Chargois Harper is increasingly dealing with family members who are afraid that their loved ones may have been subjected to undue influence in their final years. We take these accusations seriously and will evaluate them completely to see if you are capable of meeting the legal obligations set by Texas law.
Beneficiaries from throughout Texas are served by our practice. Please contact us for additional details.
You can count on us to protect your interests and resolve your legal concerns in Texas & Illinois.
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