Undue Influence and Flipping the Burden of Proof
My name is Matthew Talbot and I am an an elder law attorney in Walnut Creek. I handle elder abuse cases and today what I want to talk about is “flipping the burden of proof”. This is an extremely important topic in elder abuse cases because if there is anyone trying to say that a document, will or trust is invalid due to the undue influence of somebody else (the abuser), then that person who is making those allegations has to prove undue influence. That can be difficult at times because undue influence usually happens behind closed doors. It tends not to be written down and there is not a lot of evidence to prove it, so one tool in the arsenal of someone who is trying to prove undue influence is to “flip the burden”. Instead of the person making the allegations having to prove undue influence the alleged abuser has to disprove undue influence and show that it was signed with the free will of the decedent (the dead person) who executed the document. This can be tough to do, so flipping the burden is huge. This comes out of a case called the Estate of Mann and there is a three factor test that you have to look at to determine whether or not someone can flip the burden. The first factor is determined if the alleged abuser was in a confidential relationship with the alleged victim. A confidential relationship can be hard to define, because you want to look to see if they were in a fiduciary relationship. If they were in a caregiving relationship, or if they were close family members, like a
father daughter relationship or a brother sister relationship this can be a part of a confidential relationship. If that factor is met then the second factor is whether or not the victim actively assisted in the securing and drafting of the document. What that means is if the abuser drafted the document for the victim or helped draft the document for the victim then the second factor would be met. There is some case law that says that the abuser drove the victim to the lawyer and then sat there while the lawyer did everything. In that case then that would not necessarily meet the second factor. So these are very fact intensive and it depends how active the abuser was in organizing, drafting, and procuring this controversial document. And the last factor is the inequity of the result Basically, this means how fair or unfair was the result, and was there an undue benefit for somebody? So if there are four kids and maybe normally the estate goes to the four kids equally that would be a natural distribution. But if one of the kids drafted a will for mom or took mom to the lawyer and that kid inherited the entire estate that could be viewed as inequitable. Now of course if three of those kids moved out of state and one kid stayed with mom and took care of her while she was dealing with cancer then that may not be inequitable, so you really have to look at the evidence to determine if this is an undue benefit. So those are the three factors: confidential relationship, actively procured document and undue benefit. If the person alleging undue influence can prove these factors then the burden of proof is flipped and the alleged abuser has to disprove undue influence. This is very complicated and difficult. I have tried to break it down from the layman’s perspective, but if you believe that there has been undue influence or you are concerned that someone is under the undue influence of somebody else do not hesitate to contact your attorney to make sure to insure that someone’s rights are fully represented at all times.
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It does not help when the senior's own lawyers tear the legal documents to destroy the evidence. I am a witness 4 of my mother's lawyers destroyed her legal documents. Total of 3 wills were destroyed by her lawyers to cause conflict with her care and finances. Because of this my mother died of neglect and elder abuse in her home. Everything is gone including my mother. She was robbed of her respect and dignity. She was robbed of her money. She was starved to death and over medicated. She was left in urine and shit soaked diapers causing her to get an infected sacral bedsore. The ultimate betrayal by her doctor and her own lawyers. They medicate, isolate and steal the estate. This happened in Toronto, Ontario, Canada.
Thanks for this information. You are obviously a very brilliant lawyer/teacher. You explain things very well.
Thanks for making this video.
Excellent advice this is a good and effective technique to flip the burden of proof.
What is interesting is that a 'prong' is missing. I understood that in many states you also had to show that the elder was susceptible or vulnerable to undue influence secondary to either a medical diagnosis like dementia or pschosocial or physical dependence leading to coercion or even pharmacologically induced impairment. It won't matter who has a confidential relationship, who receives the unfair benefit, or who actively participates in the procurment of the document, if the elder is mentally competent, acting consistent with some recently stated wishes, and is fully capable of asserting his independent will during the preparation of the will and for a period of time thereafter. In other words you have to show the elder is in a weakened or compromised mental or emotional state, or none of the rest is presumed to be impactful. A lot of 80 year old men with a cancer diagnosis, a new best friend, and a need to be driven to a family law office by that friend, want to change their will because their prick of a son acted like an entitled spoiled brat and refused to fly down and visit AGAIN. They know damn well what they are doing when they change that will!
@kitincognito516
Жыл бұрын
Hi Brian! Could you point me to some sources for a project I’m doing? Also does this mean that a lawyer can prove vulnerability to undue influence if physically dependent or pharmacologically like drug use or am I mis interpreting? :( sorry this is all so hard to understand! 😩
@BTURNER1961
Жыл бұрын
@@kitincognito516first I want to be clear that I am not an attorney, have no law degree, but am just the son of one and someone who has worked with the elderly. I am just trying to read statutes and interpret them. Proving a vulnerability to undue influence is not the same as proving that an elder succumbed to one, but proving that vulnerability is an important first step in making a judge or jury see a possible or likely compromise of emotional or intellectual integrety. Physical dependency certainly may be a major factor contributing to either a pschological dependency, or coercive impact, as would some drug effects. Anything that can weaken mental acuity or induce pyschological/emotional frailty can be a contributory factor, and if you can show that a predator intended to exploit or enhance such a state, you have a much better shot this. You are dead in the water if this elder comes across in a deposition or trial as mentally sharp, cognitively alert, and capable of making decisions. Its going to be assumed that even if he wasn't 4 months ago, he knows what he wants right now, and that is to retain the changes made! Adult children who drag their parent through an ordeal like this, start to look like the predator, not the savior. Chances are, they have destroyed any trust that they may have had and ruined this relationship. I know I am not giving my kid a dime, if he tries this tactic and fails. He won't even be welcome in my home or hospital bed!
@carolfontano172
Жыл бұрын
What if the elder person, in a dire financial situation (i.e. losing their home), promises to make the abuser the Trustee of Trust and Executor of their Will, establishing said Trust in exchange for bailing them out, saving their home. Then, a few years go by and after a 4th stage breast cancer diagnosis, medical bills pile up, bills not covered by any insurance, and the elder discovers the beauty of a reverse mortgage. Only now, their abuser says "No" to that - without any logical reason, and the elder is duty bound and subject to them, as they hold a mortgage over their head.
@carolfontano172
Жыл бұрын
Isn't the FEAR created when facing the potential loss of one's home a factor in determining the mental state of someone? It seems this inherent vulnerability combined with the damaging effects of fear (ability to think clearly and logically) combine to create the perfect soil for an influencer to sow their seeds.
@BTURNER1961
Жыл бұрын
@@carolfontano172 No. that is just a convenient theory ( convenient for someone with a potential profit motive that her attorney will be exploring at great length indeed ) You have to show that Mrs. Smith was legally incompetent or coerced at the time she changed that will. Your theory is utterly useless without showing that this one specific elder who's been dragged into court, was unable to make a clear uncoerced legal decision when that document was changed. And this old woman is going to be one very hostile witness as you rip at her dignity and independence in this court proceeding.
Great
Seems like it can be tough to do and tougher to explain….
In a case where a fraudulent Trust was created through Undue Influence & Lack of Capacity: Let's say the document is determined to be VOID by the court and the valid pre-existing Trust is accepted as the correct one. How do the beneficiaries collect their inheritance? Does the probate judge order the stolen assets to be returned and distributed according to its terms? How does that work?
Very good
You broke it down very well. Wish you were in NY.
What if the LO tells her children she’s changing things around ?
Mom told me via phone conversation prior to me rescued her. That Denise "Nesie" took me to an Attorney's office and forced me to sign every thing to her and her children." Toney Kelvin and her old boyfriend John Wayne were the witnessed. Nesie had me to put her name on my Checking account inorder to move me into a New house she was was having built. Mom said, on multiple occasions "Helena, promise me, if I ever come into any money, I want you to will Nesie a one dollar bill, that way she can't hold you up in probate court!" "I don't want to see Nesie walking, driving, or flying!" I knew Nesie hated me; but I did not know that she hated me as much as she mistreated me....
What case law is the 3 step test ??
How about when the undue influencer is a new friend who will get everything in lieu of only surviving child
How about the abuser filling in an online Will and having his two sisters witness the testator signing it . The testator was 92 with dementia and in ill health who died 32 days later. Of course the abuser made himself the executer and sole beneficiary.
@blakeharkness306
2 жыл бұрын
Why does this sound exactly like my situstion........ what ended up happening?
There were more but NOT NOW.
Hope it helps that I'm leaving a comment.
So, where is Walnut Creek?
@all4jesus594
5 жыл бұрын
Walnut creek is in the Bay Area.
how about when a girlfriend says she was legally married to the estate owner but you have every reason to believe shes not and its a confidential marriage in california and no ones aloud to get a copy of said l;icense?
with out a court order!