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Stop Helping: Why Helpers Should Leave the Room

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Stop helping

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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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.