Stop helping

Stop Helping: Why Helpers Should Leave the Room

When an aging person creates or changes their estate plan, children, caregivers, friends often tag along to “help.” Most of the time, an estate planning attorney will request that the helper stop helping–not participate at all. A new court decision out of New York illustrates why.

Battle of the Wills

In the Matter of the Estate of Virginia A. Mary, Virginia died leaving three children and two wills. One will, signed in 2008, left everything equally to the three kids. The later, 2018 will, did the same, except it also left her home and its contents to her son (we’ll call him Sonny) and his wife.  One daughter submitted a copy of the 2008 document to probate. Sonny objected and offered the 2018 will instead. The trial court rejected both, and the court of appeals agreed.

The 2018 will was found to be the product of undue influence. The appeals court explains that this means “the influencing party’s actions are so pervasive that the will is actually that of the influencer, not that of the decedent.”  Such “undue influence,” the court points out, “is seldom practiced openly, but it is, rather, the product of persistent and subtle suggestion imposed upon a weaker mind and calculated, but the exploitation of a relationship of trust and confidence, to overwhelm the victim’s will to the point where it becomes the willing tool to be manipulated for the benefit of another.”

Influence Must Be Extreme

It’s more than “the promptings of affection; the desire of gratifying the wishes of another; the ties of attachment arising from consanguinity, or the memory of kind act and friendly offices.” It is instead, “a coercion produced by importunity, or by a silent resistless power which the strong will often exercise over the weak and infirm . . .” It’s so much helping that it helps yourself and hurts the weaker person.

New York’s law (like Arizona’s) shifts the burden of proof if the potential coercer has a “confidential relationship” with the decedent.  If that’s the case, the stronger party must prove that the benefit they received was not the result of undue influence. In this case, Sonny was unable to prove he helped and didn’t hurt. And, like courts Arizona, New York courts look to all the surrounding circumstances to determine whether there’s undue influence. As the decision says, “No single circumstance is dispositive . . . rather, it is the confluence of many factors.”

Sonny Couldn’t Stop Helping

The facts did not help Sonny’s case. Among them: He contacted the estate planning attorney, conveyed a sense of urgency about making the changes, handled all correspondence with the attorney’s office, and was present both during the initial meeting and when the document was signed. He needed to stop helping.

Beyond that: Virginia’s health was declining, both physically and mentally, and she may have been diagnosed with dementia. Sonny didn’t inform his sister, who was Virginia’s agent under power of attorney and handled her finances, about the new will until after the fact. When the sister read the new will to Virginia, Virginia said that she didn’t understand it and wanted to fix it. Plus, one day after the 2018 will executed, a large sum was withdrawn from Virginia’s bank account, CDs were purchased with all three children as beneficiaries. Then, a few days later, it appears that Sonny caused the third sibling to be removed as a beneficiary. (Sonny, stop helping!)

Part of the Problem: Meeting With Mom’s Attorney

The decision refers to the lower court’s finding: The undisputed facts reveal a distinct pattern of [Sonny] not acting in decedent’s best interest but simply engaging in self-dealing.

A significant part of that pattern was helping to procure the 2018 will. If Sonny had not helped so much with the newer will, would it have turned out differently? Hard to say. Without his “help,” the change might never have happened. Or, had he helped less, he (and the attorney) may have been able to testify that, at the moment the change was made, Virginia was free to choose what she wished. And that’s always what estate planning attorneys seek to accomplish. Getting too much help doesn’t help.

And the Other Will?

What about the 2008 will? The parties did not appeal that issue, probably because it hardly matters. The three kids would inherit equally under the default rules of intestacy if there was no will. But it won’t turn out equal; Sonny has to pay both his and his sister’s attorneys fees.

Had this occurred in Arizona, Sonny’s situation could have been dire. His inability to stop helping could have earned him an exploitation claim. Damages include disinheritance.

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