3 Signs that Mom or Dad Were Unduly Influenced in Executing Their Last Will and Testament

Posted By on July 22, 2015

After your mother or father passes away, it’s difficult enough to deal with your grief over their passing. Losing a parent is a life-altering event. For some, however, things get worse and the emotional burden becomes almost overwhelming when they learn about their parent’s Last Will and Testament.

An unequal distribution of their parent’s property between the children, or the surprising distribution of a substantial part of their estate to a third-party, brings with it suspicions that someone may have interfered with their parent’s true wishes on what should happen to their property after they pass away.

For these grieving children, it is a horrible thing to realize that their deceased parent may have been a victim of undue influence.

Webster County, Nebraska courthouse courtroom 2

What is Undue Influence?

Undue influence is a kind of fraud. If it is proven to exist in a probate matter, the will (or trust) in question can be invalidated by the probate judge. It happens when a testator is the victim of over-persuasion, duress, physical force, coercion, or “artful or fraudulent contrivances to such a degree that the free agency and will power of the testator is destroyed.” ln re Carpenter’s Estate, 253 So. 2d 697 (Fla. 1971)

Three Signs that Your Parent May Have Been Unduly Influenced

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1. Your Parent Lived Far Away from You

Today, parents and children are likely to live if not in different cities within the same state, then in different states altogether (or even different countries!). Not having your mother or father nearby for frequent visits means that kids aren’t able to be involved in their parent’s daily activities. Situations where there is a distance between parent and child create a greater opportunity for a third party to unduly gamf.net  influence the parent to name them as an beneficiary in their will.

2. The Health of Your Parent at the Time He or She Signed the Will

Parents that are mentally sharp and physically fit at the time are much less likely to become victims of undue influence than parents who are weakened by illness or debilitating conditions (e.g., arthritis). Parents who may suffer from mental challenges such as progressive dementia (where they are sharp in the morning but not so mentally alert by bedtime) are also more likely to be victimized.

3. Sudden Changes in the Disposition of the Estate Prior to Death

Another reason to suspect undue influence is if your parent changed a long-standing estate plan (like equal shares to all the children) shortly before their passing. If there is a big change in who gets what, or how the estate as a whole is being distributed under the will, then maybe there was some kind of undue influence involved in the last minute Last Will and Testament.

The Lamberson Example

In re Estate of Lamberson is a case that provides a cruel example of all these factors. Here, Mr. William Lamberson and his wife were living alone in their home when it became clear that they could no longer take care of themselves. At 89 years of age, Mr. Lamberson was challenged with chronic illness; his wife was similarly infirm.

A lady named Hazel Bulla came to help them in December 1979. Mr. Lamberson had drafted his Last Will in Testament in July 1979, with the residuary of his estate to Dr. Harold Lamberson and other relatives.

Unfortunately, Hazel became sick herself and couldn’t continue to help the elderly couple. So, an office worker in the Lambersons’ podiatrist’s office named Mary Schwartz appeared on the scene to take over for Hazel. There was no past history between them; Mary met the couple as they came for doctor visits.

Mary kept working for the doctor. She also got William Lamberson to sign a contract with her where she was paid $1500/month for her work in helping out the Lambersons. He also signed a Power of Attorney that let Mary handle their financial affairs and act as their guardian.

Mary Schwartz moved the Lambersons into her home. She never told anyone in the Lamberson family about what was happening with the couple. Mary never told the Lamberson’s friends where they were living, even though the friends were wanting to know and to visit.

In January 1980, Mary took William Lamberson to her attorney’s office, where she told the lawyer how the will should be prepared (who got what), brought in her friends as witnesses, and after the will was signed, kept the document in her possession. Mary didn’t tell anyone in the Lamberson family about this.

The next month, both Mr. Lamberson and Mrs. Lamberson passed away. One particularly cruel fact: Mary didn’t bother to tell Mr. Lamberson that his wife had died; he lingered on for two weeks without knowing about his wife before he passed.

Mary promptly entered the will in her possession into probate (where she got everything). The beneficiaries of the prior will contested it.

At trial, it was held as a matter of law that Mary Schwartz exercised “improper and undue influence” upon the decedent William Lamberson in the procurement of the Will. The will that Mary had entered into probate was disregarded by the court, and the prior 1979 will was probated.

What To Do If You Suspect Undue Influence

If you think that your parent may have been the victim of undue influence, then you must formally challenge the will in Florida probate court. Undue influence can be difficult to prove, and having an experienced Florida probate lawyer to help you gather your witnesses and documents to support your challenge is vital.

If you have any questions about undue influence upon your parent and their last will and testament, please do not hesitate to call us.

For more information check out our probate litigation page.

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Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

 

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