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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. wow is this a bunch of bs! i know the facts!

  2. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  3. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  4. It's a capital offense...one for you Latin scholars..

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