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Can parents write me out of will and I challenge undue influence?

In our last two videos, we explained that in certain circumstances, there might be three ways to challenge an estate, and those are being an omitted child, incapacity and undue influence, which is what we're going to talk about today.

Undue influence means excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity. Undue influence is actually something I see more than incapacity or being an omitted child, although if there is undue influence, then there usually is a little bit of incapacity, but there does not have to be.

Sometimes it's just one person having a very strong will over another. and I'm sure all of us can remember one Hollywood story or another where a movie star is under the seemingly undue influence of an alleged bad actor. I can remember similar allegations regarding Britney Spears' guardian and the caretaker for exercise guru, Richard Simmons.

Recently, even Howie Mandel came out on TikTok, of all places, and said he was not being kept against his will. And I'm sure you can think of situations where you've heard about this with friends. Unfortunately, this can happen to anyone, and as our population gets older, undue influence is becoming a bigger and bigger problem. For a challenge to work, a child must prove that their parents were under undue influence and the burden of proof is usually on the child that is making that allegation.

Let me give you a couple of examples we have seen in our over 20 years of doing estate planning, probate and trust administration. The first is a family member moves into the parent's home, and this family member could be a child, a cousin or even one of the parents' siblings, a brother or a sister. Now, the family member usually moves into the house with the understanding that they just want to help the parent out, and probably 95, 99% of the time, that reason is actually legitimate.

Maybe the family member has come on hard times and just makes sense. It's kind of a mutual benefit. Person needs some place to live, this person needs extra care, somebody around the house all the time. But you can probably see where I'm going with this, right?

Over time, the parent becomes more and more dependent on that family member living in their home, and if this family member is a bad actor, they start to see an opportunity to take advantage of the situation. We have seen these bad actor family members persuade the parent to rewrite their estate, take out insurance policies making them the beneficiary, adding their name to bank accounts so that they can help pay the bills, buy them a car to take them to the doctor's appointments. We have seen them steal pain medication and flat out just steal cash from their wallets or their purses.

All of this is absolutely horrible, it's terrible, but it usually goes even further. To prevent others from figuring out what is going on, the bad actor family member tells other family members, their brothers and sisters not to come over because their parent is sick or they're sleepy or they just don't feel like seeing anybody right now.

At the same time they tell the parent that no one else loves them or even wants to come visit them. Before long, the parent begins to resent the rest of the family and only believes in that bad actor who's there every single day.

Surprisingly, this happens on a regular basis, and if the family is lucky, if they're lucky, someone will step up and report the situation to Adult Protective Services or hire an attorney in a law firm like us to assist them with the situation. When we see this, we usually try to get an emergency guardianship and remove the bad actor or the parent from the residence as quickly as possible. This has already happened a few times this year, but not all families realize what is happening, and when the parent actually passes away, the children realize that the bad actor has stolen most, if not all of their parent's estate. By then, it's almost too late.

The second example of undue influence that we see is flat out thieves that prey on the elderly. Guys, this is horrible, and I'm certain you can think of dozen examples either from friends or from family or just reading into the newspaper. We have talked about these bad actors. they're thieves, in some of our other guardianship videos, like this one here and this one here.

Usually, they take advantage of your parents by calling them on the phone trying to sell them some great service. It only costs $10 a month, but you need that service, and it's only $10. They keep calling and they calling to make sure that the parent, that they're receiving that service and that everything is okay. They try to get a friendship. Before long, they start calling every single day and they convince the parent to buy more and more items. All of these are usually auto-draft, and before you know it, hundred of dollars are being taken out on a monthly basis. The biggest one, can you guess it? You probably received emails about this. You know what I'm talking about?

You guessed it. It's the good ol' lottery scam.

After gaining the parent's trust, they convince them that the parent has won the lottery, and the parent just needs to pay the shipping cost. Shipping cost for what? It's a lottery. But this has happened twice in the last year, and if it's not the lottery, then it is some fantastic investment. The parent just needs to wire all of their money, and the next week, they will triple their money, but they have to wire all of their money first for it to triple, right?

Guys, these stories sound crazy, just talking about them sounds crazy, but I promise you they are happening every single day. And we've seen the lottery scam, like I said, at least twice in the last year. Again, if the family's lucky and catches this in time, then we will again try to get an emergency guardianship and move all the financial accounts to a safe location so that auto-withdrawals are stopped in their tracks.

The problem with these two scenarios is that by the time the family finds out, the money is gone. If it's the second scenario where they're telephone scammers, then the money is really gone and probably in some foreign bank account completely reach of anybody. Even in the first scenario when it is a bad actor family member, the money is usually gone as well. They don't have any money to begin with and they just spend it immediately.

However, if the bad actor does not steal all the money, but instead uses undue influence to change the last will or title to assets, then it's probably worth a challenge, and you probably should challenge the situation, especially if there was a previous will and the new last will has made drastic changes to the desk, to the distribution scheme. Then it might be easier to challenge based on undue influence and you probably should challenge it, but always talk with your attorney.

Just like I said in our last video, if a person knows what they are doing and completely understands the situation, then it's going to be really hard to challenge it. And the courts around the country seem to agree with that if a person actually knows what they're doing. So how do you combat these two things? First, remember that your parent's money is their money. No matter how much you think you deserve it, their money is not your money.

However, there are situations like lack of capacity and undue influence that can and should be used to challenge your estate distributions, and that brings us to the next thing you can do. And I need to give a shout out to one of our viewers, Sno-White Benson, because she hit it on the nail when she commented on our last video.

And this is what she said, "So if you don't want to be written out of the will, continue to love your parent, visit your parents and care for your parents."

She made that comment in the form of a question, but either as a question or a statement, it's absolutely true. Pay attention to your parents and what is going on in their lives. Remember, they can do whatever they want with their money, but if you are involved and active in their life, then you are going to be able to more quickly realize when there is a bad actor taking advantage and when there is a bad situation going on.

If you missed our last videos on getting left out of your parent's estate, then please go back and watch them. And click on the link below to get our estate planning questionnaire that I use every day to get you started in the right direction.

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Cortes Law Firm

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