Perry Douglas West, Esq.
As families grow and life takes members in different directions, the responsibilities to care for parents or other aging relatives may be assumed or fall upon different members unevenly and often end up with some spending significantly more time with parents or other members as they get older.
If you think that any of these family situations may have resulted in an unfair or unreasonable distribution of that family members property, the answer to the question of whether there was undue influence asserted over that member could be the determining factor as to whether or not certain will provisions can be successfully challenged.
Undue influence is presumed when: 1. A person with a confidential relationship with the testator, 2. was active in procuring or securing the preparation or execution of the will and 3. is a substantial beneficiary thereof. It is however, a presumption which may be overcome by evidence that even in these circumstances the facts did not constitute undue influence. A number of cases have been decided that are referred to as the “dutiful son” and “dutiful daughter” cases which carve out a significant defense to the undue influence presumptions where a son or daughter was acting in the parent’s best interest in providing care and assistance when needed later in life, based upon an argument that public policy should encourage children to take care of aging parents
The application of these provisions involve the consideration of all sides of the individual family relationships and were not meant to create a leveling mechanism but were meant to provide a cause of action if the conduct of some family member(s) was so inappropriate or excessive and to constitute undue influence in that particular situation.
October 2021
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