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Undue influence- brother taking advantage of mother

Mom is showing her age, becoming more frail and not as with it as she used to be.  Your brother has returned home to live with mom or has never left home.  He doesn't work or works very little.  Mom seems to rely on him quite a bit.  When you phone your mom, brother answers and makes excuses as to why mom can't talk to you.  Mom is hospitalized and brother is named as her representative.  You want to visit but brother tells staff not to allow it.  Mom deteriorates and dies.  You then find out that mom's house and bank accounts were in joint tenancy with brother and since her death, he has had them transferred into his name only.  Also, mom has changed her will to make your brother the sole beneficiary.

This scenario plays out in many forms today.  What can daughter do?

She may be able to attack the transfers and the will using the legal doctrine of undue influence.  This influence must be more than persuasion, it has to be more, it has to be such that if mom were asked her wishes, she would reply that it is not my wish but I must do it because my son wants me to. 

Fortunately, the law has changed recently so that a person being in a position where there is potential for dependence or domination of the will-maker bears the onus of proving that he did not use undue influence on the will-maker.

This is one more tool given to persons who get less than is fair from their parent's estate.

If you find yourself in this situation, contact us for advice.

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