Undue Influence?

“Assets go to strange woman…”

From the headlines of the Santa Cruz Sentinel: “Elder Law: Son shocked to find portion of father’s assets goes to strange woman,” (Sept. 22, 2019):

A son learns that his role as executor of his father’s estate only covers the assets in the Trust. For any assets outside a trust or will, “it’s not uncommon for bonds, insurance policies, pension plans and bank accounts to have pay-on-death beneficiaries.” To recapture these assets, the son needs to prove “undue influence” or fraud resulted in the “strange woman” being named as beneficiary.

The opportunity for a “strange woman” to befriend a widower can arise from a social vacuum – often in the most innocuous settings (church gatherings, introduction by friends), and may be appear perfectly acceptable and even beneficial. However, certain ingredients can be slowly baked into a loaf of misdirection and subversion known as “undue influence.” [I am using the genders from the article, but noting that opportunists are not gender specific]

This is can be a complex process, and the early stages may resemble a relationship that is above suspicion. The devotion and attention by a new friend inspires a widow(er) coming out of a relationship loss to re-enter the world of the living. The actions of the new friend can remain beneficent, or can erode the victim’s world, in plain view of others who may be helpless to intervene. I have received calls from the adult children of victims, asking me how to handle the emerging disaster: “This ‘strange [wo]man’ is taking over – what can we do?” 

What can you do?

First, review and document: write out a list of your parent’s strengths and vulnerabilities: physical/medical, social, cognitive, emotional. Describe levels of functioning: managing household, finances, healthcare decisions as well as any changes. Note dates of changes in functioning, if known.

Second, keep a log: follow your instincts to document your concerns and what you observe. Keep a log of contacts and communications; note any barriers to your ability to connect with your parent. Keep in mind that narrowing the inflow of information from others is a major tactic of the perpetrator of undue influence. When you can’t reach your parent, note the reason – to establish a pattern of inaccessibility or isolation.

Third, attempt to widen the circle of people your parent remains involved with, and note any longterm, trusted contacts who have been eliminated from your parent’s circle: social friends, neighbors, family, professionals, advisors. Has your parent’s participation in clubs, organizations or religious activities changed?

Be aware of the difficulty of trying to talk your parent out of the relationship. Rational argument may no longer be helpful.

Fourth, if possible, review the estate plans with your parent and encourage remaining with a known, trusted estate planning attorney.

Finally, you may consider consulting with an elder law attorney. If there are indications that your parent is no longer capable of making rational decisions, action to become a substitute decision-maker may be helpful before assets are redirected out of the estate.

A mental capacity evaluation may assist in providing the support needed to protect a parent’s estate and quality of life.

Article cited: Santa Cruz Sentinel, Sept. 22, 2019: “Elder Law: Son shocked to find portion of father’s assets goes to strange woman.” By L. Tillem and R. McNichol. www.santacruzsentinel.com https://www.santacruzsentinel.com/2019/09/22/elder-law-son-shocked-to-find-portion-of-fathers-assets-goes-to-strange-woman/ .

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