IS YOUR LOVED ONE BEING UNDULY INFLUENCED?

By Rebecca M. Vaccariello

“Undue influence” is a term of art in the legal profession that describes a situation where a person, due to the influence of another, makes choices that are not truly their own.  This situation can most commonly arise when a person’s health or mental status is compromised by physical illness or dementia.  As a litigator who practices in the fields of probate, trust and guardianship, undue influence allegations are unfortunately very common and arise in a variety of contexts.  Especially in our community with its larger population of elderly residents, and the high incidence of financial fraud and schemes, it is important for everyone to be on alert for individuals who may be being taken advantage of.

What is Undue Influence Exactly?
Undue influence is defined as influence where a person is induced to act other than by their own free will and without appropriate attention to the consequences of their actions.

How Would I Know if Undue
Influence is an Issue?
Some of the common factors that are observed when a person is being unduly influenced include isolation from friends and family, disparagement of friends and family, and the active procurement of changes to the person’s estate planning documents by giving instructions as to what to do, arranging appointments to have new documents prepared or revised, and being present at the new document signing.

Often the most common observed changes is to the social life of a person being unduly influenced.  Where a person used to be social with friends and be involved in the community, they may suddenly be more isolated with the person who may be influencing them.  That person may also speak in a disparaging manner about the friends and family with whom the person had longstanding strong bonds.  Due to the person’s diminished capacity or lack of mental acuity, they may be more agreeable to whatever the undue influencer is telling them and therefore may turn on family and friends in light of what they are being told by this person.

Further, dementia can cause brain changes that can cause a person to exhibit personality changes, including anger and aggression, or even just an inability to clearly communicate their own true preferences.  A person who is unaware of this dynamic may not realize what is occurring and this can create another avenue for confusion as to how to determine that person’s true wishes and desires.  There is the risk of unintended consequences if what the person says is taken at face value, in light of their diminished capacity to be able to make decisions.

It is important to note that not every situation where changes occur, such as due to new physical limitations, are red flags for undue influence.  And not every change to longstanding estate planning documents is the result of undue influence.  As long as the person is making their own choices, and is not being inappropriately pushed into choices that they themselves would not have otherwise made, undue influence is not a factor.  It is not always a clear cut issue of course.

What Can I Do If I Suspect
Undue Influence?
Depending on the situation, you may want to consult with an attorney or place a call to law enforcement.  The Collier County Sheriff’s Office has special units for both financial crimes and for senior crime victims and a call to them may be appropriate if financial crimes or exploitation is at issue.  If you believe a loved one is being inappropriately influenced and isolated, you may wish to consult with an attorney to review all the possible options for the specific situation at hand.  In some cases a guardianship may be needed to protect the person’s physical health and finances.

If the person is now deceased and you learn of changes to that person’s estate planning documents that you suspect may have been the result of undue influence, a probate and trust litigation attorney can advise you of your options for contesting the will or trust at issue.  This is a situation that often arises because of the isolation and secrecy that undue influence entails.  Close family members and friends may not be aware of what was occurring until after the person dies and changes to a longstanding estate plan are revealed.  While there are certain hallmarks of undue influence that are commonly seen, courts will look to all relevant factors in any particular case to determine if undue influence was being exerted.  A court may overturn documents in whole or in part if they are found to be the result of undue influence.

Closing Thoughts
No one wants to see a friend or family member be taken advantage of due to their diminished capacity, and being on alert for the signs of undue influence can help protect our loved ones to live their lives in accordance with their true wishes and desires.

This Article does not constitute legal advice and may not be relied upon as such.  Each individual’s facts and circumstances are different. If you have any questions regarding your particular situation, please consult with legal counsel.

Rebecca M. Vaccariello is a litigation attorney at Salvatori, Wood, Buckel, Carmichael & Lottes.  Rebecca focuses her practice on civil litigation matters, including trust and estate litigation and guardianships.  She is involved in the Florida Bar Real Property, Probate and Trust Law (RPPTL) Section and a member of the Guardianship, Advance Directives and Power of Attorney Committee, as well as the Probate and Trust Litigation Committee.

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