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Court: Don't assume undue influence by child

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The Indiana Court of Appeals used an opinion issued today to caution courts to not assume a child is exerting undue influence over a parent when analyzing cases involving adult children assisting an aging parent.

In Bruce Barkwill v. The Cornelia H. Barkwill Revocable Trust, No. 64A04-0808-CV-455, the appellate judges had to decide whether Cornelia Barkwill revised her trust under undue influence from her son Jeffrey Barkwill. Jeffrey lived near Cornelia, assisted her in getting a line of credit on her homes, and issued checks drawn on that line of credit to her when needed. He also advanced around $230,000 of his own money to her throughout the years. Bruce lived in Florida and only saw his mother twice between 1998 and when she died in 2007.

After taking Valium without a prescription, Cornelia became disoriented and confused, leaving her house in disarray. She told Bruce she thought Jeffrey and his family was stealing from her. After she stopped taking the Valium, Cornelia returned to her normal self and worked with an attorney to revise her trust to remove Bruce as a beneficiary. She named Jeffrey as sole beneficiary.

The trial court found the 2006 trust to be valid. It ruled that even if Meyer v. Wright, 854 N.E.2d 57, 60-61(Ind. Ct. App. 2006) and Allender v. Allender, 833 N.E.2d 529, 533 (Ind. Ct. App. 2005), do stand for the idea advanced by Bruce that a presumption of invalidity attaches to a gift from a parent to a caretaker child because the child is in a fiduciary relationship to the parent, and creates an inference the gift is a result of undue influence, the facts in the instant case overcome that presumption.

On appeal, Bruce claimed the trial court failed to apply the necessary presumption of undue influence by Jeffrey on Cornelia. He believed the financial arrangements between Jeffery and their mother points to his obvious dominant position. Jeffrey argued that no presumption of undue influence attached to his relationship with his mother and Bruce had misinterpreted the trial court's finding on the issue.

The appellate court found Cornelia's arrangements with Jeffery weren't her only means of income, she didn't depend on him on a daily basis, and he wasn't in a dominant role in the relationship with his mother at the time she changed the trust. Also, unlike the circumstances in Meyer or Allender, Jeffery wasn't involved in the revision to the trust, wrote Judge Michael Barnes.

This issue is one that will garner continued attention as the baby boomer generation ages, wrote the judge. The appellate court warned courts to proceed with caution in analyzing the parent-child relationship when a child is a caretaker of the parent and not to automatically presume the child is in a dominant role and exerting undue influence over the parent.

"We caution that love, attention, and occasional assistance provided by an adult child typically and naturally arise from a sense of filial duty. It seems unreasonable for our courts to rely exclusively upon care, compassion, or generosity by an adult child for their ailing parent and then render such actions suspect," he wrote. "These relationships must be carefully examined in light of the surrounding circumstances before any conclusions regarding that child's dominance and influence be made."

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  • Agree with UI ruling
    I wholeheartedly agree with this Judge's ruling and applaud it. I am searching to see if any Michigan cases such as this holding. The courts I hope will not equate love, attention, respect, assistance to undue influence. Need more judges who will think that way--outside of the box. Thank you.

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  1. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  5. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

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