If you have a client that believes a loved one was unduly influenced to change their estate plan, can that client object to the estate plan during their loved one’s life? Or, is the case not ripe until after the loved one’s death? This issue was recently litigated in Maryland.

Undue influence involves an individual taking advantage of another. This usually happens at the hands of a family member in an effort to gain financial control over someone with diminished capacity. In certain jurisdictions, undue influence is presumed when there is a fiduciary relationship between the two parties; the person doing the questionable action must rebut this presumption for the action to stand. Recently, a case highlighted how a presumption of undue influence was upheld and the offending party’s actions were undone.

Donald and Marjorie were married in 1997. Each of them had two adult children upon entering the marriage–Donald’s kids were Kathy and Ray; Marjorie’s kids were Julie and Colleen. Donald and Marjorie created a revocable living trust together. At first death, the trust remained revocable as to the survivor. Upon the death of the survivor, all four kids were equal residuary beneficiaries.

Donald died in 2000. Kathy and Marjorie communicated sporadically throughout the years after Donald’s death. Ray’s communication with Marjorie ended shortly after Donald’s death. In 2004, Marjorie sold the family home and sent all four children checks for equal amounts of the proceeds.