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, 120 (1989). If a person can prove that undue influence was the cause of a will or trust being made or amended, of real property being conveyed, or of gifts being made, a judge or jury will declare the will or trust to be invalid, and will rescind the conveyance or gifts.
The following are some of the most common signs of undue influence. Note that oftentimes in situations of undue influence, many of these signs will be present. Below, I refer to the person exerting the undue influence as the “Influencer”.
- The person stops making phone calls to family members (or makes phone calls significantly less often than before)
- The person stops visiting friends, family members, etc.
- The person shows signs of mood swings
- The person increasingly says that “the Influencer can do this task for me”, when the person was previously very independent
- The Influencer prohibits visits (under the guise that the person “needs rest” or “can’t be disturbed” or “needs peace and quiet” or “doesn’t wish to be bothered”)
- The Influencer takes extra steps to prohibit contact by those who could help the person break free from the undue influence (such as social workers, clergy, etc.)
- The Influencer monitors visits (by insisting on being present, filming them, audio-recording them, etc.)
- The Influencer prohibits telephone calls
- The Influencer monitors telephone calls (by insisting on being on the line, recording them, etc.)
- The Influencer frequently moves the person around to different living environments in order to prevent contact and visits
- The person stops communicating by e-mail, Skype, or Facetime
- The person is unaware where his checkbook or financial statements are located
- The person is unaware where his original will and/or trust are located
- The Influencer begins to sign checks for the person, or make financial transactions
- The Influencer is added to the person’s bank accounts (under the guise of being able to “help” the person with bank transactions)
- The person begins exaggerating his medical ailments (often Influencers will tell people that they’re more frail than they really are in order to create dependence)
- The person faces excessive criticism by the Influencer (often Influences will try to wear down a person to make them believe that they lack the ability to handle their own affairs)
- The person makes statements to the effect of “the Influencer wants me to do XYZ, and he’ll be upset if I don’t do that”
- The person makes statements to the effect of “the Influencer wants me to do XYZ, and I really don’t have any other choice but to comply”
- The person visits an estate planning attorney recommended by the Influencer
- The person visits a financial advisor recommended by the Influencer
- The person makes changes to long-standing customs and/or habits
- The person turns over the planning of daily life activities to the Influencer
- The Influencer spends excessive amounts of time around the person, much of which is unsupervised
- The Influencer speaks poorly about the person’s family and friends (at first, often just echoing minor gripes that the person may make, but then over time becoming more critical)
- The person begins to make small gifts to the Influencer, or confers other financial benefits (such as making a loan, co-signing for a loan, permitting the use of a vacation home, permitting the use of a vehicle or boat, investing money in the Influencer’s company, etc.)