Undue Influence Unveiled: Protecting the Vulnerable

In this episode, we tackle the complex and often heartbreaking issue of undue influence in estate planning. With insights from litigation Attorney Jane Dearwester and the compassionate host Jordan McIntyre, we shine a light on how vulnerable individuals are sometimes manipulated into altering their wills or trust documents for the personal gain of others. Through compelling case studies, we illustrate the concerning realities of family members or caregivers misusing their positions of trust to exploit the elderly.

Listeners can expect to learn about the legalities surrounding undue influence and the evidentiary requirements involved in proving such cases in North Carolina. Dive into pivotal discussions about identifying signs of coercion, recognizing the motives behind manipulative behaviors, and understanding the protections the law offers to safeguard against these despicable acts. 

Ultimately, we underscore the importance of proper estate planning as a tool to prevent such scenarios, enabling individuals to have their wishes respected even in vulnerable moments. Join us for a heartfelt conversation with valuable insights that could make a difference to you or your loved ones. Don’t forget to subscribe, share with your community, and follow our journey in fighting for what’s right!

Episode Transcript

Jordan McIntyre (00:00):
I'm Jordan McIntyre with McIntyre Elder Law
, and I'm joined by JaneDearwester, an expert in
litigation, and today we'regoing to talk about undue
influence litigation.
It's a significant concern inthis area of the law,
particularly in cases involvingcontested wills, trust and
property transfers, and itreally occurs when you have an

(00:23):
individual, through some type ofcoercion, manipulation or
deception, exerting excessiveinfluence over an elderly or
vulnerable person to gain anunfair advantage in legal or
financial matters.
North Carolina law providesspecific legal standards and
evidentiary requirements forproving undue influence, and

(00:45):
Jane is going to lead us intothat fact intensive process.

Jane Dearwester (00:50):
Yes, thank you, jordan.
Thank you for being with ushere today to talk about this.
This is a very unfortunatelyrampant issue that we see as
elder law attorneys, wheresomeone in the family, and
sometimes outside the family,takes the opportunity to

(01:11):
manipulate or coerce someoneinto changing their estate plan
or to signing deeds to theirproperty over to somebody for
that person's personal gain.
So North Carolina has laws inplace to protect us from that
kind of fraudulent and kind ofdespicable behavior, and it

(01:32):
looks at a variety of factors.
So the first thing the courtsare going to look at is is this
person and we're talking aboutthe person who owns the property
or the person who's purportedlydoing a will is that person
subject to influence?
So is there evidence, what youpresent to the court?
Is there evidence to show thisperson has some kind of

(01:55):
diminished capacity ordiminished or lack of cognitive
ability, that this person'sstruggling either physically,
mentally?
That's the first thing they'regoing to look at is is the
person we're analyzing, are theysubject to influence or
coercion by others?
The second element is was therean opportunity available to the

(02:17):
parties involved to exertinfluence on this vulnerable
person?
In other words, we see a lotthat a family member, caretaker
will sequester this person awayso that not let family members
see them, not let anyone seethem, not let them out of the
house, lock them in the basement.
These are extreme examples, butit's this idea.

(02:39):
Have they been around them?
Have they been coaching them?
Did they have this opportunityto exert influence?
And all of this is proven bytestimony and evidence in court.
These are all questions of factto be determined by the judge
or by the jury.
The third element is thedisposition or the motive to
exert influence.

(02:59):
Did this person who we'realleging was exerting the
influence?
Did they have a motive?
Are they inclined to do thiskind of thing?
Do they have a history ofcriminality?
Do they have a history of actsof dishonesty or doing things

(03:21):
under false pretenses?
So we can pull this person'scriminal record that could
potentially be admissible, orfind other circumstances that
show this person has a motive.
Maybe they're the beneficiaryof the life insurance policy or
something in that nature, orthey're the beneficiary under
the trust or the will.
So do they have a motive toexert influence?

(03:43):
And then the fourth element istrust.
Was there a result indicatingthat undue influence occurred?
In other words, did thisinfluence on the vulnerable
person result in a new willbeing put into place or a new
codicil, a new amendment to awill being executed or signed?

(04:03):
Was there a change to the trust?
Did somebody sign a deed at thelast minute that divested their
children to some other randomperson?
I have a case up here in themountains where all of a sudden,
at the end of her life, a womansigned everything over to her
pastor instead of her family andwe have a case pending against

(04:26):
the pastor saying this was undueinfluence.
So not only was this person,our client, subject to well, we
represent the family thedecedent.
She was subject to undueinfluence.
She had diminished capacity.
This pastor was really in aposition of trust and influence

(04:46):
for her.
He had the opportunity to meetwith her multiple times where it
was just the two of them, andthen, lo and behold, out came a
deed and a new will divestingall of her assets from her
family and leaving everything tothe pastor.
So this is what we're going toput before a judge or jury to
determine do those facts andcircumstances all taken together

(05:10):
, do those point us to undueinfluence?
We've got to prove that by.
The burden of proof in thesecases is greater weight of the
evidence, so 51%.
So they're tricky right.
There's a lot of differentfactors that can go into these
types of cases, for sure.

Jordan McIntyre (05:29):
And I know that you have a lot of experience
doing this.
I'm gaining that experience andfiguring out how fact intensive
it can really be.
I think when you're draftingthe pleadings you're not aware
of how much really goes on indiscovery and continuing on in
this process, but I have alwaysfelt um happy when an attorney

(05:51):
like brenton or you, um will goto mediation and get some type
of settlement for our clientthat really assists a vulnerable
individual.
I feel like we are the lastline of defense for a vulnerable
individual that was taken careof um and I'm excited to

(06:12):
continue to get experience inthat area through
under-influenced litigation.
I'm going to have to take theadvice of you and Brenton and
continue on figuring out how todo this.

Jane Dearwester (06:23):
Yeah, I think these situations as you work
your way through these and wehave multiple of these cases
across the state I think in alot of cases they're very hard
to witness.
It's hard for those of us whoconduct ourselves kind of
honorably and with compassionand, you know, on the right side

(06:44):
of the law, so to speak, it ishard to witness what people do
to each other, ultimately forpersonal gain, financial gain.
They want to get somebody'sproperty, they want to get all
the money out of someone's bankaccount.
It's really hard to witness andto see this happen within
families.
And so it's just another reasonwhy doing estate planning in

(07:06):
general is so important to getyour legal affairs in order and
to have that done with anattorney who knows what they're
doing.
Have that done with an attorneywho knows what they're doing,
who knows how to protect you.
That leaves a paper trail ofwhat your wishes are when you're
in a state where you knowwhat's going on, nobody's
exerting influence.

(07:26):
And again, just an importantfactor to come back around to
why it's important to planbecause that plan even if
somebody has influence over youlater in your life or when
you're in a vulnerable positionand tries to change it.
The plan you put into placethat's solid, hopefully will
revert back to that and that'swhat we're trying to get that

(07:49):
type of relief for our clients.
We want their ultimate wishesto be followed.
And if they didn't make a plan,then, as we know, the statutes
in North Carolina make a planfor what happens if you don't
have a will.
So we want your heirs at law torecover your assets, not some
trickster who has been trying todo something by some, you know,

(08:14):
kind of shifty shady means wewant those people to be held
accountable and in some of thesecases there's a criminality
aspect to it.
Some of these acts arepotentially criminal acts that
involve forgery, that involvejust straight up theft of
financial resources.
So there can be a criminalelement sometimes which we don't

(08:37):
handle, but that would gothrough the district attorney's
office.
But yeah, all this to say,these situations are very hard
to witness and our attorneyshere are great about standing up
for what's right and standingup for our clients, about
keeping property where itbelongs and, again, trying to

(08:58):
keep our clients' wishes andtheir families' wishes to be
honored, to be valid.
That's ultimately what we'retrying to accomplish and, yeah,
they're hard to witness and,yeah, be kind to each other,
that's it.
When I see these cases, I'malways like, wow, can we all
just be a little bit nicer toeach other out in the world,

(09:20):
because they are hard to witnessfor sure.

Jordan McIntyre (09:24):
Yes, it is hard to witness and I think that
I've been blessed to be anattorney at a law firm where we
have compassionate attorneyslike Jane.
I think that this justhighlights the importance of
having trusted agents, of havingtrusted executors, trusted

(09:44):
trustees.
So come to McIntyre Elder Lawif you need assistance with
undue influence litigation orwant to meet with compassionate
attorneys to help you preventthese types of scenarios.
We have offices inHendersonville, delby and
Charlotte, so we have multiplelocations close to you.
I'm licensed in South Carolina.

(10:05):
Now If anyone needs assistancewith South Carolina estate
planning, visit the website atwwwmcelderlawcom to find all
types of articles, blogs andeducational resources on these
materials litigation and estateplanning.
Give us a call at1-888-999-6600.

(10:27):
And yeah, I think that's allit's great talking to you, Jane.

Jane Dearwester (10:34):
Same here.
Thank you so much, cheers.