Elder Law Report
Elder Law Report
Undue Influence Unveiled: Protecting the Vulnerable
In this episode, we tackle the complex and often heartbreaking issue of undue influence in estate planning. With insights from litigation Attorney Jane Dearwester and the compassionate host Jordan McIntyre, we shine a light on how vulnerable individuals are sometimes manipulated into altering their wills or trust documents for the personal gain of others. Through compelling case studies, we illustrate the concerning realities of family members or caregivers misusing their positions of trust to exploit the elderly.
Listeners can expect to learn about the legalities surrounding undue influence and the evidentiary requirements involved in proving such cases in North Carolina. Dive into pivotal discussions about identifying signs of coercion, recognizing the motives behind manipulative behaviors, and understanding the protections the law offers to safeguard against these despicable acts.
Ultimately, we underscore the importance of proper estate planning as a tool to prevent such scenarios, enabling individuals to have their wishes respected even in vulnerable moments. Join us for a heartfelt conversation with valuable insights that could make a difference to you or your loved ones. Don’t forget to subscribe, share with your community, and follow our journey in fighting for what’s right!
I'm Jordan McIntyre with McIntyre Elder Law, and I'm joined by Jane Dearwester, an expert in litigation, and today we're going to talk about undue influence litigation. It's a significant concern in this area of the law, particularly in cases involving contested wills, trust and property transfers, and it really occurs when you have an individual, through some type of coercion, manipulation or deception, exerting excessive influence over an elderly or vulnerable person to gain an unfair advantage in legal or financial matters. North Carolina law provides specific legal standards and evidentiary requirements for proving undue influence, and Jane is going to lead us into that fact intensive process.
Jane Dearwester:Yes, thank you, jordan. Thank you for being with us here today to talk about this. This is a very unfortunately rampant issue that we see as elder law attorneys, where someone in the family, and sometimes outside the family, takes the opportunity to manipulate or coerce someone into changing their estate plan or to signing deeds to their property over to somebody for that person's personal gain. So North Carolina has laws in place to protect us from that kind of fraudulent and kind of despicable behavior, and it looks at a variety of factors. So the first thing the courts are going to look at is is this person and we're talking about the person who owns the property or the person who's purportedly doing a will is that person subject to influence? So is there evidence, what you present to the court? Is there evidence to show this person has some kind of diminished capacity or diminished or lack of cognitive ability, that this person's struggling either physically, mentally? That's the first thing they're going to look at is is the person we're analyzing, are they subject to influence or coercion by others? The second element is was there an opportunity available to the parties involved to exert influence on this vulnerable person? In other words, we see a lot that a family member, caretaker will sequester this person away so that not let family members see them, not let anyone see them, not let them out of the house, lock them in the basement. These are extreme examples, but it's this idea. Have they been around them? Have they been coaching them? Did they have this opportunity to exert influence? And all of this is proven by testimony and evidence in court. These are all questions of fact to be determined by the judge or by the jury.
Jane Dearwester:The third element is the disposition or the motive to exert influence. Did this person who we're alleging was exerting the influence? Did they have a motive? Are they inclined to do this kind of thing? Do they have a history of criminality? Do they have a history of acts of dishonesty or doing things under false pretenses? So we can pull this person's criminal record that could potentially be admissible, or find other circumstances that show this person has a motive. Maybe they're the beneficiary of the life insurance policy or something in that nature, or they're the beneficiary under the trust or the will. So do they have a motive to exert influence?
Jane Dearwester:And then the fourth element is trust. Was there a result indicating that undue influence occurred? In other words, did this influence on the vulnerable person result in a new will being put into place or a new codicil, a new amendment to a will being executed or signed? Was there a change to the trust? Did somebody sign a deed at the last minute that divested their children to some other random person?
Jane Dearwester:I have a case up here in the mountains where all of a sudden, at the end of her life, a woman signed everything over to her pastor instead of her family and we have a case pending against the pastor saying this was undue influence. So not only was this person, our client, subject to well, we represent the family the decedent. She was subject to undue influence. She had diminished capacity. This pastor was really in a position of trust and influence for her. He had the opportunity to meet with her multiple times where it was just the two of them, and then, lo and behold, out came a deed and a new will divesting all of her assets from her family and leaving everything to the pastor.
Jane Dearwester:So this is what we're going to put before a judge or jury to determine do those facts and circumstances all taken together, do those point us to undue influence? We've got to prove that by. The burden of proof in these cases is greater weight of the evidence, so 51%. So they're tricky right. There's a lot of different factors that can go into these types of cases, for sure.
Jordan McIntyre:And I know that you have a lot of experience doing this. I'm gaining that experience and figuring out how fact intensive it can really be. I think when you're drafting the pleadings you're not aware of how much really goes on in discovery and continuing on in this process, but I have always felt um happy when an attorney like brenton or you, um will go to mediation and get some type of settlement for our client that really assists a vulnerable individual. I feel like we are the last line of defense for a vulnerable individual that was taken care of um and I'm excited to continue to get experience in that area through under-influenced litigation.
Jordan McIntyre:I'm going to have to take the advice of you and Brenton and continue on figuring out how to do this.
Jane Dearwester:Yeah, I think these situations as you work your way through these and we have multiple of these cases across the state I think in a lot of cases they're very hard to witness. It's hard for those of us who conduct ourselves kind of honorably and with compassion and, you know, on the right side of the law, so to speak, it is hard to witness what people do to each other, ultimately for personal gain, financial gain. They want to get somebody's property, they want to get all the money out of someone's bank account. It's really hard to witness and to see this happen within families. And so it's just another reason why doing estate planning in general is so important to get your legal affairs in order and to have that done with an attorney who knows what they're doing. Have that done with an attorney who knows what they're doing, who knows how to protect you. That leaves a paper trail of what your wishes are when you're in a state where you know what's going on, nobody's exerting influence. And again, just an important factor to come back around to why it's important to plan because that plan even if somebody has influence over you later in your life or when you're in a vulnerable position and tries to change it. The plan you put into place that's solid, hopefully will revert back to that and that's what we're trying to get that type of relief for our clients. We want their ultimate wishes to be followed.
Jane Dearwester:And if they didn't make a plan, then, as we know, the statutes in North Carolina make a plan for what happens if you don't have a will.
Jane Dearwester:So we want your heirs at law to recover your assets, not some trickster who has been trying to do something by some, you know, kind of shifty shady means we want those people to be held accountable and in some of these cases there's a criminality aspect to it.
Jane Dearwester:Some of these acts are potentially criminal acts that involve forgery, that involve just straight up theft of financial resources. So there can be a criminal element sometimes which we don't handle, but that would go through the district attorney's office. But yeah, all this to say, these situations are very hard to witness and our attorneys here are great about standing up for what's right and standing up for our clients, about keeping property where it belongs and, again, trying to keep our clients' wishes and their families' wishes to be honored, to be valid. That's ultimately what we're trying to accomplish and, yeah, they're hard to witness and, yeah, be kind to each other, that's it. When I see these cases, I'm always like, wow, can we all just be a little bit nicer to each other out in the world, because they are hard to witness for sure.
Jordan McIntyre:Yes, it is hard to witness and I think that I've been blessed to be an attorney at a law firm where we have compassionate attorneys like Jane. I think that this just highlights the importance of having trusted agents, of having trusted executors, trusted trustees. So come to McIntyre Elder Law if you need assistance with undue influence litigation or want to meet with compassionate attorneys to help you prevent these types of scenarios. We have offices in Hendersonville, delby and Charlotte, so we have multiple locations close to you. I'm licensed in South Carolina. Now If anyone needs assistance with South Carolina estate planning, visit the website at wwwmcelderlawcom to find all types of articles, blogs and educational resources on these materials litigation and estate planning. Give us a call at 1-888-999-6600. And yeah, I think that's all it's great talking to you, Jane.
Jane Dearwester:Same here. Thank you so much, cheers.