Tuesday, September 1, 2015

Word of the Month for September 2015: Undue Influence

Undue Influence
You ever notice that some people just seem to exist to serve as a warning for others?  Yeah, like all those people who win Darwin Awards, or people who keep responding to emails from people in Nigeria, or people who check the box on their tax return to donate $3 to politicians.  

Such was the case I had presented to me the other day.  Seems guy had a large holdings of real estate (i.e. on paper, he was filthy rich).  Seems guy was in his 90's, recently had a high risk surgery, and was recently diagnosed with advancing dementia (i.e. he's about to lose his mind).  Seems also that guy had a "friend" who is encouraging him that before he completely lost his mind (non compis mentus, and all) that he create a trust and grant all his property to said friend.   

Turns out friend is with guy 8 hours a day and is the one person who helps guy change his diapers (my dad was in this boat and it really sucks), who helps guy remember to take his pills, who is the only person who talks to guy any more.  Is it any reason guy wants to give ALL his property to his friend?  On the surface, it all looks great - but then King Lear pops in my mind and friend's altruistic story all goes south.

Of course, this all brings us to this month's word of the month: UNDUE INFLUENCE.  According to Black's Law Dictionary, UNDUE INFLUENCE is defined as 
the improper use of power or trust in a way that deprives a person of free will and substitutes another's objective; the exercise of enough control over another person that a questioned act by this person would not have otherwise been performed, the person's free agency having been overmastered.
I suspect the question to be raised is whether someone would have done something but for the influence or interjection of another.  For example, a revered peer encourages another kid to steal something to show his loyalty to a group/gang.  Maybe, as here, the best example is where a trusted friend pressures a person to draft a will creating a legacy or gift for that "friend" by use of trickery, flattering, or suggestion.

While there may be none of this in guy's situation, I told guy that his best course of action would be to hire an attorney to draft his estate planning documents for him.  That way, neither "friend" nor anyone else can be accused of exercising UNDUE INFLUENCE as the attorney would be able to attest that guy had received adequate legal counsel and was able to make all gifts of his own free will.  

While I'm guessing that was not the answer "friend" wanted to hear, I'm hoping guy has enough going for him that he is willing to go the extra mile and make sure all his "t's" are crossed and "i's" are dotted before he moves on to greener pastures else "friend" (or most anyone else) won't get so much as a pot to piss in if/when loooooong lost family members suddenly re-appear to collect on the dearly departed's estate (as they often do when money is to be had).