Undue Influence and the Adult Child Caring for the Aging Parent

Undue influence is the short phrase that lawyers in probate and estate matters use to describe any number of circumstances and legal theories that all pretty much add up to the same thing – fraud.


Most often, we encounter allegations of undue influence in connection with the execution of a Last Will and Testament.  There are many reasons why a person’s Will might be found invalid, and a proven claim of undue influence is one of them.  To prove that a Will was procured fraudulently, a person must show that another person held influence over the Decedent, and that they exerted that influence to overpower the free will of the Decedent.  As a result, the Will must have been executed as a result of this person’s overpowering influence.  When the Will truly isn’t the Decedent’s intention, the probate court can ignore it.


Lots of Will Contests include claims of undue influence.  Many, if not most of them, fail.  Most undue influence claims are lost at the exertion or causation stage.  It isn’t enough simply to show that a person was in a position of confidence and influence.  You must also show that the person acted to exert that influence, and that the influence truly resulted in a Will that the Decedent would not have otherwise signed.


But relationships of confidence and influence are all around us, and the mere opportunity to influence a person’s Will is not enough to constitute actionable fraud.  Adult children providing in-home care to their parents is a perfect example.  Many times, these children end up prominently featured in the Decedent’s Will, often receiving more than their siblings who did not provide in-home care.


To the inside child, it seems perfectly reasonable that Mom or Dad left them a larger inheritance.  This child may have stopped working to care for their parent in the home, and the Decedent may have wanted to compensate the child through their inheritance.  To the outside child, this scenario almost always leads to litigation.  The outside child often assumes that the inside child slowly manipulated the Decedent into assigning them greater and greater portions of the overall inheritance.  Opportunities to isolate the Decedent are inevitable, and the outside child often believes that the inside child played a heavy role in procuring a Will that disproportionately benefits them.


As in all things, there is never a clear side to favor in these disputes.  The facts are what they are, and our attorneys have seen viable and less than viable undue influence claims.  With a rising number of adult children acting as in-home caregivers for their aging parents, we should only expect family disputes in this area to increase.