Category Archives: Undue Influence

Confronting Caretaker Abuse & Misconduct

While most caretakers for sick and elderly people are honest, occasionally families and friends are forced to deal with a dishonest caretaker who steals a person’s money; pressures him to change a will, trust, or power of attorney; pressures him to sign a deed; isolates him from family members, etc. A recent article highlights this unfortunate fact: A Newport News [Virginia] woman will serve a fraction of a 30-year prison sentence for stealing $30,000 from a woman she cared for. Michele Lee Conley, 43, received three-year prison sentences for 10 counts of forgery and uttering after she tricked a 92-year-old …

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The Ernie Banks Will Dispute Highlights Potential Concerns About Caregivers

The famous baseball player Ernie Banks was known for his positivity and his love of baseball (captured in his iconic phrase “Let’s play two,” referring to his desire to play a doubleheader every day). It’s ironic, then, that his estate has been the subject of a bitter dispute between his family and his caretaker. CNN.com Reports: “Banks family attorney Mark Bogen said Banks’ agent, Regina Rice, had the octogenarian sign a new will three months before his death. Our family thought that Ms. Rice was helping our father and watching over him while he was in Chicago,” son Joey Banks …

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Recognizing Signs of Undue Influence

Undue influence over elderly persons, disabled persons, and others is a large problem, which will only get worse as American society increasingly ages and the baby boomer generation prepares to transition large sums of wealth via their estate plans. It’s important for every family member, friend, neighbor, business colleague, etc., to be aware of the signs of undue influence so that they can protect their family members, friends, and associates. The law in Virginia (like the law in most states) defines undue influence as influence “sufficient to destroy [the] free agency” of a person. Jarvis v. Tonkin, 238 Va. 115, …

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Why You Should Avoid Filming a Will Signing

With few exceptions, filming or recording a will signing is usually a bad idea. Nevertheless, some estate planning attorneys still film certain will signings under the assumption that videotaping a will signing will provide tangible “proof” that the person executing the will was not suffering from a lack of testamentary capacity at the time of execution. There are several reasons why, in most instances, this is a bad idea. First some background: in order for a will to be valid, the person executing the will (often referred to as the “testator”) must have “testamentary capacity” (which, in most states, is …

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Why a Guardianship Proceeding Could be a Precursor to a Will Change

Did you know that in Virginia, a person who is the subject of a guardianship and/or conservatorship can still have the requisite testamentary capacity to enact or amend his will? As a result, there’s a huge potential for mischief by those seeking to be appointed a guardian and/or conservator. First, some background: several years ago, the Virginia Supreme Court reiterated – in the case Parish v. Parish, 281 Va. 191 (2011) – that a person can still have testamentary capacity to make a will (that is, the required mental ability), even if a court has appointed a guardian and/or a …

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New Law Enables Possible Recovery Of Attorney’s Fees On Grounds Of Undue Influence

Last year, the Virginia General Assembly adopted a new law that went into effect on July 1, 2014.  Virginia Code Section 8.01-221.2. provides as follows: “In any civil action to rescind a deed, contract, or other instrument, the court may award to the plaintiff reasonable attorney fees and costs associated with bringing such action where the court finds, by clear and convincing evidence, that the deed, contract, or other instrument was obtained by fraud or undue influence on the part of the defendant.” In other words, the court has the option (note the use of the word “may”, as opposed …

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