By Stephen C. Andrews, JD
Bodker, Ramsey, Andrews, Winograd & Wildstein, PC
What do you do when you suspect that a loved one is being subjected to undue influence or other pressures to change their will?
Georgia law provides that a will must be freely and voluntarily executed. That is, a will may be invalidated if it is the result of “undue influence,” which occurs when one person uses fear, force, over-persuasion, or coercion to destroy the free will power of the testator (the person making the will).
Determining undue influence:
Some of the relevant factors to consider in determining whether or not undue influence exists include:
· The existence of a confidential relationship between the parties;
· The reasonableness or unreasonableness of the testator’s disposition of his estate;
· The testator’s dealings and associations with the beneficiary;
· The testator’s habits, motives, or feelings, and his physical and mental strengths or weaknesses;
· The testator’s family, social, and business relations;
· The manner and conduct of the testator; and
· Any other fact or circumstance that shows the exercise of undue influence on the mind and will of a testator, including evidence as to the bad character of the person (s) exerting the influence.
A transaction is presumed to be the result of undue influence when the parties are in a confidential relationship with each other and one party has a much greater mental ability than the other, who may be aged or ill, and the one having the greater mental ability reaps the benefits of the transaction.
The above situation is described in the recent case of Bailey v. Edmundson, 280 Ga. 528, 630 S.E.2d 396 (2006).
Raymond Bailey executed a will on October 20, 2003 naming his daughter as the executrix and primary beneficiary.
On June 18, 2004, caregivers that Raymond had recently met at church were hired by him. Shortly thereafter, Raymond executed a new will making specific bequests to these caregivers.
Raymond died on September 9, 2004, leaving his daughter only 25% of his estate.
Raymond’s daughter challenged the September will on the grounds that it was procured by the undue influence of the caregivers. She lost her case at the trial court level, but on appeal, the Supreme Court of Georgia reversed and found in her favor.
The Supreme Court found that there was ample evidence of undue influence because the caregivers:
· Established a “confidential relationship” with Raymond,
· They were not the natural object of his bounty, and
· They took an active part in the planning, preparation, or execution of Raymond’s new will.
The caregivers were not the “natural objects” of Raymond’s estate plan. They
were not related to him by blood or marriage, nor were they his long-term friends. Instead, they had only recently come to know Raymond through his “death bed” affiliation with the church.
There was also significant evidence that the caregivers took an active part in procuring Raymond’s new will. Before the execution of the September 9, 2004 will, a caregiver contacted her own attorney, prepared an agenda for the first meeting at Raymond’s home to discuss the new will, participated in this meeting, and helped Raymond write the check to pay the attorney.
Between the first meeting and the execution of the will, the caregiver reviewed the draft will with Raymond, made several calls to the attorney’s office, and added a provision to the will giving her Raymond’s van.
The Supreme Court also found evidence of a “confidential relationship” by virtue of Raymond’s severe physical disabilities, memory impairment and mental confusion in the summer of 2004.
During this time, Raymond hoped to go to heaven by making loans and gifts to the caregivers. He was dependent on his caregivers for his personal and medical care and he was afraid they would quit and that his daughter would put him in a nursing home. The caregivers played on his fears and caused Raymond to stop his daughter’s visits.
Based on these facts, the Supreme Court found sufficient evidence of undue influence to invalidate the September 9, 2004 will and reinstate the previous will.
How to minimize undue influence
· Stay in contact both physically and emotionally;
· Watch for unusual transactions, i.e., dispositions of property;
· Assessment by a professional of mental and physical limitations;
· Establish guardianship and/or conservatorship after consultation with an Elder Law Attorney.
If you need answers to your elder care questions, send your questions to us at:
Answers are provided by our ElderCare Matters Partners, some of America's TOP Elder Care Professionals who have years of experience in helping families plan for and deal with a wide range of Elder Care / Senior Care Services.
All Q&A's are posted on the homepage of ElderCareMatters.com
If you help familes plan for or deal with elder care matters, then you owe it to yourself and to families across America to become a professional member of the National ElderCare Matters Alliance and to be listed on the many Elder Care / Senior Care Directories that are sponsored by this National Alliance of Elder Care Professionals.
For additional information about professional membership in the National ElderCare Matters Alliance, (including the many benefits of becoming one of our ElderCare Matters Partners) and to download an Application for your Basic, Premium or Partner Membership in the National ElderCare Matters Alliance, visit: ElderCare Matters Alliance.