A legal action may be brought against the brother for undue influence if it is supported by the evidence.
First, consider carefully what makes you think that your brother influenced your mother to change her Last Will and treat you unequally?
Emotions run high following the death of a loved one, particularly a parent. And if it is the last of the two parents to die, then siblings may be particularly vulnerable to the eruption of discordant feelings which may have begun during childhood and evolved during adulthood. Now that both parents are gone, siblings are more apt to act in ways they might not have when a parent is around.
Many questions arise when discussing whether undue influence has been exerted, such as:
Consider the circumstances surrounding the parent’s health and mental condition. Despite the parent’s elder age, was she of sound and clear mind? Perhaps due to her advanced age, she had trouble recognizing relatives, the date, and the extent of her assets?
Knowledge of the contents of medical records is important, especially if there is a diagnosis of cognitive brain dysfunction such as dementia or Alzheimer’s disease. Did the parent continue to manage her own affairs, go grocery shopping, pay her bills, make and attend personal appointments by herself etc.?, Or was she relying on others, such as the brother, to assist her either informally or as an agent under a Power of Attorney document? Were there other persons, such as home care providers, assisting her, and what were their observations of the mother’s statements and actions, as well as of the brother’s?
What type of relationship did the brother have with the mother? If the brother was in a position to be intimately and confidentially assisting the mother with the handling of her activities of daily living or financial assets, then it is reasonable to take a closer look at their relationship and consider whether the brother overstepped his responsibilities and exerted some sort of control over the mother. Perhaps the brother was living with the mother and she naturally felt a closer kinship which she chose to reward. Was he handling her checkbook or online banking, with or without her authority? Did she add his name to her accounts, to her deed, to the home? When did these actions occur…a long time ago or just prior to death?
Was the brother scheduling the mother’s medical appointments, answering the telephone for her, and monitoring her visitors? Was the other sibling able to call and visit their mother as often and whenever he wanted? Did the mother have other visitors? Did the mother make statements about her decisions and her wishes, and was she able to act upon them? How are these statements and actions different from what her Last Will declared?
What is the specific action that the brother took which caused the other sibling to think that their mother was unduly influenced? Did the brother take advantage of his personal relationship to cause the mother to do something(s) that was unlike her or contrary to her stated wishes or previous actions? Who else observed the mother, and the mother and brother together?
There are many complicated issues steeped in potential family dynamics at play in evaluating a potential action for undue influence. Consultation with an experienced probate litigation attorney is imperative.
Author: Valerie Raudonis
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