Drafting an estate plan is supposed to be a process blanketed in trust. Those engaging in estate planning often trust professionals to provide them with advice that is best for their set of circumstances, and those same individuals often trust that their heirs and beneficiaries will abide by the estate plan. Although thoughtful and thorough estate planning can ensure that trust is maintained and that asset distribution upon death occurs in accordance with a testator's wishes, there are circumstances where trust is betrayed and estate plans are threatened.
One way this can occur is when others exert undue influence on a testator. Influence exerted over a testator can be deemed "undue" when the testator was susceptible to influence, an individual had the access and ability to influence the testator, influence was indeed exerted in order to gain favor and the individual who exerted that influence held a position of authority or trust over the testator.
There are a number of circumstances under which undue influence can be exerted. Oftentimes, adult children who are taking care of an aging parent unduly influence their parent for financial gain. This may be evidenced by dramatic modifications to an estate plan, including the disinheriting of other individuals and cash advances or the transfer of assets to that child. It is important to note that spouses are usually not considered to have exerted undue influence, even if these types of changes are made based on his or her recommendations.
Undue influence can completely wreck an established estate plan. To avoid the risk, individuals may want to consider other tools, such as powers of attorney, to ensure that their financial decisions, including those related to an estate plan, are made with their best interests in mind. Qualified legal professionals will know how best to advise an individual to avoid unwanted estate planning issues, which is why New Yorkers engaging in this process may want to sit down with an experienced attorney to discuss their unique set of circumstances.