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.

There are many ways to provide for a married client’s surviving spouse after the client’s death. This type of estate planning is often referred to as marital share funding. Spouses may use various marital share funding options in either will- or trust-based estate plans. Their goals may include estate tax planning, probate avoidance (especially when using a trust-based plan), and incapacity planning. Disclaimers can be used when planning for estate taxes and may be particularly helpful in other situations relevant to married clients. 

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.