As a will and trust attorney, I regularly assist clients who want to leave one child a bigger inheritance than their other children. Often that’s because that child has been stepping in as caregiver for their mom or dad in their later years. Perhaps they’ve given up their own job, done the cooking and cleaning, provided rides to appointments, been a companion and handled a million other small tasks that caregivers do. Although the client loves their other children, those children aren’t as involved in the client’s life. Now the client wants to compensate the child for the gift of caregiving. When that happens, we always make sure to have a big talk about whether that’s going to make the other kids angry — and even mad enough to sue.
Litigation over a family member’s will is the last thing anyone wants. A surefire way to invite a lawsuit is to be involved in a parent’s will preparation ... especially if that will leaves you more money than everyone else.
If a relative believes you forced your parent to make a will or trust to increase your inheritance, they may accuse you of “undue influence.” And when your mom or dad passes away, a court may declare that the will is void if it has enough reason to believe that you coerced your parent into writing their will to benefit you.
Making a plan
Caregivers and care partners should absolutely have a conversation about getting an estate plan completed. It’s a necessary and helpful part of the life and death process, and it makes everything easier for both caregiver and patient. But the caregiver who is a future beneficiary of an inheritance needs to be aware of what a court will look at to see if there’s “undue influence.” If you’re going to assist your parents when they meet with attorneys, tax professionals or financial advisers to discuss their estate plan, there are ways you can avoid the appearance of influence over your parents’ decisions. This will help protect your parents now and may guard you from a future lawsuit. Most important, it will ensure that your parents’ wishes are upheld when they pass on.
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First, your parents should communicate independently with the law firm to set up their appointment, and meet with the attorney without any of their beneficiaries present. This may not always be practical — many older adults don’t use email or schedule their own appointments. In that case, and especially if you selected the law firm, the attorney you are working with should make a point of meeting separately with your parents before or on the day of their appointment. That will give the legal representative an opportunity to make sure your parents know why they’re meeting with an attorney and that they indeed want to be there. It’s also a chance for your parents to speak freely and confidentially. Once they’ve done so, they may elect to have you in future meetings with the attorney. But your parents will be the attorney’s client, and they should always start with a one-on-one talk, without you in the room.
Letter of intent
If your parent decides to leave unequal inheritances, or even cut a child out of their estate plan, they may want to keep a letter of intent with their important documents. The letter can prevent ruffled feathers by explaining to family members why the parent made certain choices (“I left Gwen a bigger inheritance because she’s been paying out of pocket for my assisted living facility” or, “Joe and Patty are receiving the condo, and not John, to equalize that I paid for John’s mortgage down payment on his house”).
If your parent is a vulnerable person (perhaps they’re much older or they have early dementia or another disability) but you believe they are of sound mind, your attorney should be advised of any diagnoses or concerns that may prompt a later claim that the parent wasn’t competent to make a will. The attorney will interview your parent and take detailed notes on how they presented and responded during the interview. Your parent’s doctors may also prepare a note for them attesting to their competency.
Trusted friends or relatives who aren’t going to benefit from the will could be the ones to give a ride to the will-signing appointment or attend meetings with attorneys and advisers. They stand to gain nothing and can serve as neutral witnesses.
A word of caution about online will services. If you use one of these to make a will for your mom or dad, it could potentially look to a judge or jury like you made the document for your parent against their wishes and forced them to sign it. Be careful about going it alone. Your parent should disclose their intentions to a neutral third party and be sure to have witnesses and notaries who stand to gain nothing from the estate one way or the other.
Keep a detailed account
If a disputed will or trust heads to court, the judge will be looking for evidence that you controlled your parent’s decision-making. If you manage the calendar, give rides to and from the bank, update accounts and book appointments, keep detailed notes and consider bringing other caregivers or friends into the task management. If you are the one holding on to your parent’s will, they should disclose this to others, so it doesn’t appear like you are withholding documents from your parent.
Evidence that your parent enjoyed activities and had interests can rebut an argument that you tried to isolate your parent to get control over their finances and your future inheritance. Community and connection with others — through hobbies, social groups, service or faith-based activities — can establish that your parent was not 100 percent reliant on you and that you didn’t have total control of all their daily care and activities.
Watch what you say
Refrain from insulting or disparaging family members who are going to receive less in the will. Your sister may not have been helpful in your parent’s time of need, but it looks fishy if you tell the world how much you loathe her and then help your mom create a will that cuts her out of an inheritance.
If you’ve ever complained that your parent is stubborn or strong-willed, know that in this case, it’s a good thing. If your parent rejects your requests or assistance (like where to live, bank or meet with certain doctors or advisers), that could help you in court.
Independent thought and action on your parent’s part is important to avoiding an “undue influence” claim. You and your parent may be the very best of friends, and being a dutiful child shouldn’t put you in hot water with your relatives or the court. As one Florida court put it, “Taking care of an elderly parent is a ‘good thing’; no one should be put on the defensive for doing what is right.” Just make sure you take the noted steps in case you someday find yourself playing defense.