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Tuesday, November 1, 2016

Taking an elderly parent or grandparent to make the will YOU want them to have is elder abuse

I often hear about adult children who take their parent or grandparent to a lawyer and tell the lawyer that Mom or Grandad wants a new will. Sometimes they really do want a new will and sometimes they don't. To me, the practice of taking an elderly person with dementia to a lawyer they don't know and springing this surprise on them is elder financial abuse. A reader recently told me his story, which is below, followed by my comments.

"My grandmother's estate was to be split evenly between her four children or their portion to their children should they pass before their mother. Two of the four predeceased their mother. One of the two surviving children have changed the will to cut the grandchildren out and to have it split evenly between the sole surviving children. My grandmother had dementia for the last 10 and was in a care home during which time the change was made."

You haven't asked a question, but I assume that in addition to being appalled by what has happened with the will, you are wondering about the validity of the changed will and whether you can challenge it.

The surviving children could not change the will, but I think what you mean is that one of them persuaded your grandmother to change the will. I wish I could tell you this is rare, but unfortunately a depressingly large number of people are willing to use their aging parents or grandparents as pawns in the game of inheriting money.

It's exceptionally tricky to try to apply the law to the facts in cases like this. The law itself is clear; a person must have mental capacity at the time will instructions are given as well as at the time a will is signed. What is not always so clear is whether any individual person does or does not have mental capacity at any given time, particularly if you are talking about some time in the past. It's not always clear whether a decision or choice was freely made.

As a general rule, we assume that an adult person does have capacity to make a will unless there is some reason to doubt that assumption. A diagnosis of dementia is certainly a reason to raise doubt though on its own it may not be enough to rule out a valid will. This is because a person with dementia can be in early stages in which the dementia is less severe, or could be having an especially good or bad day, and capacity must be "sufficient", not "perfect". The effects are not the same from person to person, or even within one person from day to day.

In your case, you seem to be saying that your grandmother had been diagnosed with dementia for 10 years before the will was changed. To me, that suggests that the dementia had time to progress beyond the early, milder, stages and there is a greater chance that her capacity is impaired.

Another issue that is intimately related to that of incapacity is undue influence. It's essential that a person who signs a will does so voluntarily. However, it can occasionally be almost impossible to determine whether the person really does want the will that he or she signs, particularly if the will is quite a bit different from his or her earlier will. Sometimes incapacity contributes to the person's inability to make clear decisions or to form proper judgments. In other cases, the person who is changing their will may be afraid of what will happen if he or she does not go along with what is being imposed upon them by others.

So where does all of this leave you?

If your grandmother passes away with the changed will in place, you can challenge its validity based on your grandmother's lack of mental capacity or the fact that she was influenced, or both. This involves a full lawsuit, so you would have to be prepared for something lengthy and expensive. It would be really tough on family relationships as well.

In my view, you have some important facts in your favour. One is that you said your grandmother had dementia for 10 years, so I assume that there must be at least one written diagnosis during that time. She was in care, and often seniors go through an assessment at the time they go into care to determine placement based on how much assistance they need on a daily basis. A written, dated, diagnosis of dementia would support your argument that your grandmother didn't have the capacity to change her will.

A fact that goes strongly in your favour is that the change to the will benefitted the person who helped your grandmother make the change. You haven't given details on exactly how the person arranged for the change to the will, but typically it involves someone physically taking the parent or grandparent to a lawyer and asking for a new will. This week I met with the family of someone who picked up their elderly mother from her care facility and didn't tell her where they were going until they arrived at the lawyer's office where the mother was given a new will to sign. When a will benefits a particular person, it makes it more likely that they really did try to influence the testator in order to gain some financial advantage.

A trial on these issues would likely involve testimony of family members as well as the input of the lawyer who drew the will, doctors who have examined your grandmother and perhaps other medical experts. These trials do succeed when the evidence is there to support you.

Though I have warned you that estate litigation is difficult, I'm certainly not suggesting that you avoid it by persuading your grandmother to go back to the lawyer and change her will back to the way it was before. That would mean you'd be doing exactly what someone else has already done - that is, to interfere with your grandmother's plans for personal gain.

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