ILNews

Guarding against undue influence

Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Focus

Changes in a person’s will and estate plan that vary from equal distribution of assets among heirs, as favored by law, should raise red flags, elder law attorneys say.

State law carries a presumption of the exercise of undue influence in such cases. In instances where a dispute among rightful heirs may result in litigation, practitioners say attorneys have a duty to ensure that their client hasn’t exerted undue influence.

certain-joseph.jpg Certain

“You have to establish to your own satisfaction that the individual is competent and capable of handling their own affairs,” Marion attorney Joseph Certain said of the grantor in such cases. “You have to look at the relationship between the individuals and why they’re doing what they’re doing.”

Certain represented the prevailing party at the trial court level in a case recently affirmed by the Indiana Court of Appeals, largely due to precautions counsel took in a guardianship case with an unusual set of circumstances.

Phyllis Hayes agreed in 2005 to execute a promissory note, mortgage, will and option contract that gave her son, Kenneth, the right to purchase the family’s 200-acre farm in southern Miami County for $500,000.

Kenneth Hayes had loaned his parents $180,000 several years earlier, and the record revealed this helped save the family farm. But when Kenneth Hayes said he planned to purchase the farm in 2010 by exercising the option agreement his mother signed, his sisters Jo Ann Hayes and Diane Hale objected, particularly because the value of farmland had more than tripled since the contract was signed.

Though Kenneth Hayes had power of attorney over his mother, he hadn’t used it to facilitate the land sale, the record says. Lawyers who represented him at the trial court and on appeal said they made sure that had been the case.

Certain said the case circumstances were very unusual, “which is why we took extra steps to document the whole process.”

Certain represented Kenneth Hayes when the trial court allowed him to purchase the farm under the 2005 contract. The Court of Appeals affirmed May 29 in Guardianship of Phyllis D. Hayes, an Adult, Joann Hayes and Dianna Hale v. Kenneth J. Hayes, 52A02-1308-GU-751.

In representing Kenneth Hayes, Certain said he visited with Phyllis Hayes independently in 2005, as did his office manager. They wanted to see for themselves, individually, that Phyllis Hayes was competent. They also got a doctor’s statement saying she was capable of making decisions regarding her estate.

Certain said Phyllis Hayes “was very well-spoken and comported herself very well” and continued to handle her own affairs and take an active role in managing the farm. He asked her why she was changing her estate plan, and she explained that not only had her son helped out in hard times, he also helped run the farm until his father died a few years earlier and had continued to assist.

“Our sole interest was to do the best we could to demonstrate that (Phyllis Hayes) was capable and to see what we could do to get her wishes carried out,” Certain said.

beeman-thomas.jpg Beeman

“She wanted the son to get repaid with interest for the money he put into the farm to save it for the family, and, if he was so desirous, to keep the farm in the family,” he said.

Certain was so sure of Phyllis Hayes’ competence that he chose to videotape her talking about why she changed the estate plan – a move he admits could have backfired. In this case, though, “It’s hard to look at that tape and suggest she was anything other than fully competent or there was any evidence of anyone trying to influence her.”

That was a concern when he chose to turn on the camera, though. “What I was concerned about was it would look like I was influencing her,” Certain said. “I tried to be very careful. … I just asked her two questions and let her explain.”

That concern is a legitimate one, said Indianapolis attorney John Cremer. He has never used a video record in the thousands of estate matters he has handled. He believes elderly people may become anxious when the camera is introduced and they consider the gravity of what they say. “The lawyer ends up cueing the client and making it look unnatural,” Cremer said.

If he were to use a video, Cremer said he might opt for something closer to a “day in the life” scenario, following the client and allowing her to discuss why one family member is being favored over another. But video may present another danger. If a video statement is taken in one case and it’s not a common practice, the motivation for recording a particular client could come into play, he said.

“I think there are better ways to protect the plan than to videotape,” Cremer said. “I’m a big proponent of clinical capacity assessments.” Those assessments are done by a health care practitioner who’s instructed on the legal standards for capacity, so “the clinician knows exactly what to test for.”

Anderson attorney Thomas Beeman argued the Hayes case successfully before the Court of Appeals and said the record was replete with evidence of the mother’s competence. Crucial to overcoming the presumption of undue influence, Beeman said, Kenneth Hayes was never involved in drafting the contract giving him the option to buy the farm, and his mother was represented by counsel during that time.

“When an attorney allows one of the children to be involved in the process itself, it brings into the picture all kinds of inferences,” Beeman said, noting the care taken in this case to keep Kenneth Hayes and his counsel from advising Phyllis Hayes.

“You see a lot of cases where that’s not the way it was done,” Beeman said. “Attorneys seem to have a blind spot where that’s concerned.”

Beeman said he might have done one thing differently in this case back in 2005: obtain an appraisal of the farmland. But attorneys did the next-best thing, offering testimony from an appraiser that the agreement had been based on fair-market value per acre of farmland at the time the contract was drawn.

Indianapolis attorney Claire Lewis said it’s imperative for lawyers to do a little detective work when an heir or grantor attempts to change estate plans in their favor. Lewis is a board member for the Indiana Chapter of the National Academy of Elder Law Attorneys.

“If you’ve got a parent with six children and all of a sudden they’re deciding to leave everything to one child, I’m going to ask some really tough questions,” Lewis said. “Why are you changing it? Why now?”

lewis-claire.jpg Lewis

It’s also important that attorneys document what’s said and their impressions of the person’s competence, Lewis explained.

“One of the things I always caution – especially younger attorneys – you have to make sure you know who your client is,” Lewis said. “If there’s any question of capacity … meeting with the client outside the presence of any family members is paramount.”

Lewis also tries to make sure questions of competency are addressed before any changes are made. “When in doubt, you can always ask for a doctor’s certificate of capacity,” she said.

There are legitimate reasons why an older adult, particularly one subject to a guardianship, might chose to amend a will, Lewis said. Perhaps one sibling has sacrificed to provide care, for example, and the parent decides a greater share of the estate is warranted.

Certain summed up his advice this way: “When a client treats a legal heir either more favorably than others or less favorably than others, that to me is a signal that I want to make an inquiry into the thought process that the individual is going through.”•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

ADVERTISEMENT