As the number of baby boomers who are retiring continues to increase, and the burden of elder care and child care grows for middle class families, more and more elderly individuals are likely to end up in nursing homes or at-home care arrangements, outside the watchful eyes of their family members.
When this happens, the possibility for undue influence on an elderly family member’s estate grows significantly. New individuals are charged with taking care of those family members, having contact with them in the absence of loved ones. Hence, litigation over undue influence in financial decisions and estate planning has grown exponentially in recent years, and many trusts and estates attorneys anticipate that this will only continue.
In Texas, undue influence is defined through a three part test:
All three of these elements must be met in order for undue influence to be established. Essentially what this test requires is a showing that another individual has taken advantage of your family member’s elderly state of mind, and changed a trust or will so that the individual themself will benefit.
For example, your father may have set up a trust for you to receive a rare collection of coins that he owns. He is receiving 24-hour care from in-home care providers, one of whom learns about the coin collection. Overtime, that provider frequently mentions to your father how much he loves coins and how nice it would be to have a collection. The provider tells your father that he will no longer take care of your father if he doesn’t give up the coin collection.
Eventually, he convinces your father to move the coin collection out of trust and give it to the provider instead. This is undue influence.
While undue influence often involves third parties that are new to a family and providing outside services, it can also occur between family members. Perhaps your sister wants a vacation home that has been granted to you – she may try to sway her elderly mother to change her mind about who to give it to. It is not only outside strangers who benefit from undue influence.
Texas law provides that an interested person in an estate, such as a beneficiary of the estate, can bring a suit to contest a will or trust. Under Texas’ estates code, beneficiaries have two years from the time the estate is in probate to bring such a claim. If a claim is based on forgery or fraud, this two year limitation can sometimes be extended.
The individual who brings a suit for undue influence has the burden of proving that undue influence actually occurred. Unlike other states, Texas does not presume undue influence when changes are made to an estate while an elderly individual is in a vulnerable state.
In order to prove undue influence, the beneficiary must meet the three part test laid forth above. In doing so Texas courts will consider certain factors in evaluating undue influence. These factors include:
If a beneficiary is capable of satisfying Texas’ three part test through a showing of these factors, there are different remedies available based on the circumstances of the undue influence.
In most cases, proving undue influence will invalidate the transaction entirely. For instance, if the elderly individual has made a conveyance to another that is found to be the result of undue influence, that conveyance would be voided. Similarly, if a trust is set up based on undue influence, or a new will created, these instruments would be revoked.
It is possible that undue influence will not entirely upend transfers of an estate or probate proceedings. If the undue influence only resulted in slight modifications to a trust or will, some courts have allowed for these instruments to be modified back to the original intent, rather than invalidating them entirely.
Bringing an undue influence claim against a trust can be a difficult and complicated endeavor, particularly where it involves inter-family allegations or disputes. Texas law places a significant burden on the beneficiary bringing such a claim to provide extensive proof that the undue influence occurred before invalidating the will and intent of the elderly individual who requested the trust.
This means that it is important to take the time to carefully collect the necessary evidence needed to support your claim, and to talk with family members, friends, and caregivers about what they might have observed. Sometimes it is necessary to request documents or even hire an investigator to get to the bottom of an undue influence situation.
At Romano & Sumner, LLC, our trust litigation attorneys increasingly deal with family members who are concerned about the possibility that their loved ones have been subjected to undue influence in the last years of their life. We take these claims seriously and will thoroughly investigate them to determine whether you are able to meet the burden imposed by Texas law. Our practice serves beneficiaries throughout Sugar Land, Houston, and the surrounding areas. For more information, contact us online or at 281-242-0995.
Romano & Sumner, PLLC
