Elder financial abuse is a growing concern that often involves taking advantage of vulnerable seniors, manipulating them into altering their estate plans, and disinheritance of rightful heirs. This is something I am seeing more and more in my practice. A troubling example I was recently retained to address involves a widow whose spouse passed away some time ago. After the spouse’s death, an individual with no apparent familial relation to the widow moved into her house. This individual then placed the widow in a nursing home and subsequently, family members were barred from visiting her. This individual had the widow sign various documents giving him control over her finances. These actions raise serious concerns about the widow’s well-being and the legitimacy of any changes made to her estate plan during this period.
The family, including the widow’s daughter and grandchildren, discovered that they had been disinherited by a trust which suspiciously left everything to the individual who moved in and his daughter. Given that the widow was blind at the time the trust was signed, there are valid questions about her capacity to understand and consent to the changes in the trust.
In such situations, the following steps can be taken:
- Legal Consultation: It is crucial to consult with an attorney who specializes in probate, elder law, and estate litigation to assess the potential for fraud and lack of capacity. The attorney can guide on how to contest the trust and investigate the circumstances under which it was created.
- Gathering Evidence: Evidence such as medical records to establish the widow’s capacity at the time the trust was signed, testimonies from individuals who can attest to her state of mind, and any suspicious behavior by the individual in question should be collected.
- Contesting the Trust: If there is evidence suggesting that the widow lacked the capacity to sign the trust or was unduly influenced, the trust can be contested in court. The court will consider whether the widow understood the nature and consequences of the trust and whether any manipulation occurred.
- Protecting the Elderly: If elder abuse is suspected, adult protective services should be contacted to ensure the safety and well-being of the widow.
- Investigation: If there is a belief that the individual in question has engaged in similar actions with other elderly individuals, a broader investigation may be warranted, potentially involving law enforcement or other agencies that deal with elder abuse and fraud.
The initial approach involves sending a letter to the individual in question, possibly to request information or to put him on notice of potential legal action. This letter should be drafted by an attorney to ensure it is appropriately worded and to avoid any potential legal pitfalls.
It is a sad reality that vulnerable individuals can become victims of opportunistic individuals. Taking swift and decisive action to protect the rights and assets of the elderly, especially when there are indications of exploitation, is of utmost importance.
If after the investigation it is found that there was abuse and fraud, the family can reverse and have any documents signed as a result of the fraud invalidated. The following is an example of what could be done:
- Lack of Testamentary Capacity: If the decedent did not have the mental capacity to understand the nature and consequences of the document they were signing, the will and trust could be contested. Evidence of mental incapacity could include medical records or witness testimony regarding the decedent’s state of mind.
- Undue Influence: If the decedent was subjected to undue influence by someone who exerted pressure on them to change their estate plan in a way that benefits the influencer, this could be grounds for contesting the will and trust.
- Fraud or Duress: If the decedent was fraudulently induced into signing the will or trust, or if they signed under duress, the documents could be invalidated.
- Improper Execution: If the will or trust was not executed in accordance with state laws (for example, lacking the necessary number of witnesses), it could be contested.
- Existence of a Later Will or Trust: If a more recent will or trust is discovered that revokes the earlier documents, the newer documents could take precedence.
- Statute of Limitations: Claims against an estate that have been barred by the general statute of limitations are not typically allowed, but if a claim was presented before it was barred, the representative may not refuse payment based on a statute of limitation.
- Questions of Will’s Construction: If there is a question regarding the will’s construction or if the beneficiaries cannot be ascertained solely by reference to the will, a declaratory judgment may be sought to construe the will.
- Probate as Muniment of Title: If the will was not presented within four years of the decedent’s death and the applicant was not in default for failing to present it, the will might be probated as a muniment of title, which could affect the distribution of assets.