Adult child – Helping a Parent or Unduly Influencing?
October 5, 2021
As more and more middle-aged children are caring for their elderly parents, their roles include managing and dividing finances. This may be more pronounced in the state of Florida in light of the great elderly population.
This may lead to issues with respect to estate planning, especially if the elderly parent has diminished mental capacity, and relies on an adult child for decision making. This not-uncommon scenario lends to allegations that an adult child’s influence regarding estate planning decisions of their parent constitutes “undue influence.”
To prove undue influence in the procurement of a will, the will contestant must establish three elements. It must be shown that the respondent: (1) occupied a confidential relationship with the testator, (2) was a substantial beneficiary under the will, and (3) was active in procuring the will. In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971).
These elements in Florida are demonstrated to the court through evidence. Undue influence can be shown when there is a relationship of trust and evidence of gaining money and assets as a result thereof. Just for illustration:
- Dramatic changes to an estate plan in favor of the adult child, and disinheriting (or limiting the inheritance) to other children or other family members;
- Lots of changes to an estate plan, over just a short period of time in duration;
- Gradual changes that favor the adult child or perpetrator (more and more in each change)
- Unexpected or sudden cash advances, gifts, transfers of assets, and the like to the adult child during the elderly parents’ lifetime (called intervivos transfers).
Having a conversation with elderly parents does not constitute undue influence. Each case which involves allegations of undue influence – and particularly, active procurement – must be decided based on its particular facts. Estate of Brock, 692 So. 2d 907, 912 (Fla. 1st DCA 1996), citing In re Carpenter, 253 So. 2d at 702.
The First District Court of Appeal, in Estate of Kester v. Rocco, 117 So. 3d 1196 (Fla. 1st DCA 2013), held in relevant part:
The evidence that Glenna had a close relationship with her mother was insufficient to infer any undue influence. The testimony established that the other heirs also had close relationships with Mrs. Kester and assisted her with various tasks and transportation whenever needed. Evidence merely that a parent and an adult child had a close relationship and that the younger person often assisted the parent with tasks is not enough to show undue influence. Where communications and assistance are consistent with a “dutiful” adult child towards an aging parent, there is no presumption of undue influence. Ultimately, “[i]f an adult child … cannot talk to his parent … then we have finally demolished the family ties of love and natural affection.”
Internal citations and quotations omitted.
The Third District Court of Appeal, in Carter v. Carter, 526 So. 2d 141, 142-3 (Fla. 3d DCA 1988), held that:
Once the familial situation has been brought into proper focus, it is clear that the actions of James and Carl in executing the will were “perfunctory physical activities” rather than active procurement. In re Estate of Siddons, 297 So.2d 54 (Fla. 3d DCA), cert. denied, 304 So.2d 125 (Fla.1974); In re Estate of Smith, 212 So.2d 74 (Fla. 4th DCA 1968). Theirs were the acts of dutiful sons who helped their mother draw up her will and execute it. She was aging and needed helpful information and even advice. Her sons were shown to maintain constant contact with their mother. James handled her financial affairs; Carl made repairs around her home. Both saw that her physical needs were met.
While we readily acknowledge that there will be instances in which a child or parent may unduly influence one or the other in procuring a will, we hold that on the facts of this case, neither the conduct of Carl nor that of James amounted to undue influence.
Evidence merely that a parent and an adult child had a good relationship, or that the adult child often assisted their parent is not sufficient evidence for undue influence, according to the case law. However, adult children should protect themselves against allegations of undue influence and consider giving minimal advice to their parent on their estate planning. Rather, the estate planning should come from the adult in consultation with their trusted estate planning attorney.