By James W. Mallonee
Can a child or care giver be accused of unduly influencing the preparation of an elderly person’s Will, and if so, is there a defense he or she can rely on? The answer is a guarded yes. It’s called the dutiful child or person exception.
I recently experienced this with two clients who came to the office to change their Wills from benefiting their children to giving the entire estate to their caregiver of 10 years and the other was granting a greater share of the estate to one of the children over another. In both cases the children claiming undue influence were less than attentive to the elderly client. The clients’ day-to-day needs were being managed by the caregiver and in the other situation by the child who stayed behind to care for the parent.
This issue of undue influence raised its head in 1971, where the Florida Supreme Court outlined 5 major factors in the case entitled: the Carpenter case. The Carpenter case is always considered when seeking an undue influence claim. Those applicable claims the Court laid out are: 1) presence of the Beneficiary during the execution of a Will; 2) the Beneficiary’s recommendation of an attorney to prepare a Will; 3) the Beneficiary’s knowledge of the Will’s contents prior to signing; 4) the Beneficiary giving instructions to the drafting attorney; and, 5) the Beneficiary securing witnesses and safekeeping of the documents after signing.
Once these issues can be proven, the burden of proving no undue influence shifts to the Defendant to show that no undue influence occurred. Keep in mind that Mom or Dad are deceased and can’t assist in explaining why or why not no undue influence occurred in the preparation of their Will. As a result, the Defendant must shift the burden of proof back to the Plaintiff to show that no undue influence occurred. This can only be done by proving the dutiful actions of the child or caregiver over time that was not provided by the opposing child during Mom or Dad’s lifetime.
The defense for such action is to prove the actions of the child (the plaintiff who brought the undue influence claim) were never present in helping or assisting the parent. Examples might be a failure to contact or check in or the parents’ health. It can also be a failure to contact the parent during holiday seasons. It can also be shown by a failure to visit the parent. The dutiful child or care giver defense can normally be proven when a parent relies heavily on the assistance of one of the children or care giver. However, the dutiful child or care giver does have a responsibility to report to the parents’ children and not exclude them.
Suggestions by the dutiful child or care giver involving financial and health management are two areas that the court’s look to show a level of assistance being supplied for the benefit of the parent. Another involves the frequency of visitation by a child when able to do so.
But what about spouses? Can an undue influence claim be sought against a spouse? Consider this: an elderly widowed person remarries an individual who is twenty-five years their junior. The elderly parent dies after two years. When the Will was recovered, it showed that the elderly person changed their Will removing his children and giving everything to the new spouse and the spouse’s children. The courts have consistently held that undue influence claims cannot be made between spouses because of the naturally close relationship between themselves.
If undue influence can be avoided between spouses, what about when a child or caregiver has an equally close relationship with a parent. In the 1988 case of Carter v. Carter, the First District Court of Appeal explained that a caring child should not be penalized because: members of a family should be able to discuss matters without it being considered inappropriate procurement, and if the court does penalize a child, then in such events the family unity will finally be demolished as it pertains to love and affection for each other. This is a major defense for those individuals who are being sued for undue influence.
In today’s world more and more couples are not getting married and consider themselves partners. Should the partners who live together for any length of time be considered any differently than a spouse or dutiful child’s close relationship? The answers to this question has yet to be decided, but as more and more people begin living together (for whatever reason) this issue will continue to rise up. Florida’s code continues to review public policy encouraging close family relationships without the fear of being considered undue influence.
If you believe you are the victim of being characterized as unduly influencing a person, you should contact the attorney of your choice and have that discussion about the elements which could cause problems and provide a defense.
This article is intended for informational use only and is not for purposes of providing legal advice or association of a lawyer – client relationship.
James W. Mallonee (Jim Mallonee) is a graduate with a B.A. degree from the University of South Florida and a Master of Science degree from Rollins College in Winter Park, Florida. He obtained his Juris Doctorate from the University of the Pacific, McGeorge School of Law in Sacramento, California. Prior to returning to Florida to practice law, Mr. Mallonee was employed by Intel Corporation for 22 years in such locations as New Jersey, Florida and California.
In addition to being a member of the Florida Bar since 2003, Mr. Mallonee serves on the Charlotte Community Foundation Committee for asset allocation and teaches Business Law at State College of Florida. Mr. Mallonee is also on the Board of Directors for the Military Heritage Museum located in Charlotte County, Florida.
His firm practices law in the following areas: Probate, Wills & Trusts, Guardianships, and Litigation in the areas of Real Estate, Guardianships and Estates. The firm has two locations in Venice and Port Charlotte, Florida.
946 Tamiami Trail, #206
Port Charlotte, FL 33953
(941) 206-2223
Facsimile (941) 206-2224
871 Venetia Bay Blvd., #225
Venice, FL 34285
(941) 207-2223