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.”•


Post a comment to this story

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
Subscribe to Indiana Lawyer
  1. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  2. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  3. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  4. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  5. I hope you dont mind but to answer my question. What amendment does this case pretain to?