‘She cleaned him out’: My dying father, who had stage 4 cancer, moved in with his girlfriend. In 3 months, she sold his house and pocketed the money.

by Quentin Fottrell

Dear Quentin,

Three months before passing away, my father moved back with his girlfriend and made her power of attorney so she could sell his house, pay bills and make medical decisions.

She cleaned out his bank accounts and she sold his house. He had stage 4 cancer and was not physically able to handle his business. As power of attorney, she put her name on his bank account, changed his beneficiaries and stopped communicating with his family. How can I find out she was added to the bank account and changed his beneficiaries?

She flipped the title on his car, sold all his furniture and told us that our dad didn’t leave me or my sister anything. He was not married and he had two daughters. His house sold five days before he died and unless he has some other bank accounts, the money ($200,000) went into the account she put her name on.

I am currently waiting for the survivors’ department of the federal government to send me the packet with a list of beneficiaries on his life insurance as well as his retirement/pension. I am also waiting on his death certificate in order to open probate to see what other assets he has. I appreciate any advice you can give to help me navigate through this difficult situation.

Does a POA have the authority to make these types of changes and cut his direct heirs out of everything, and keep everything for herself?

Daughter of the Deceased

Dear Daughter,

From what you say, this woman should be prosecuted — not placated.

A power of attorney who appropriates an elderly person’s assets using undue influence and/or the intent to defraud can face criminal and civil penalties. Larceny, the theft of someone’s property, is a felony in most states, depending on the amount stolen. She is likely betting on your legal inexperience and good nature to get away with it.

She was not his wife, and as his on-again, off-again girlfriend, her actions vastly overstepped her role as a power of attorney, who is in a position of trust and has a fiduciary duty to act on behalf of the principal and in their best interests. Clearly, she was acting in her own best interests, selling his assets and putting them in newly created joint bank accounts.

There is a statute of limitations on elder financial abuse in most states, and you should treat this as such. It’s not the Case of the Greedy Girlfriend, to paraphrase the alliterative episode titles of Perry Mason; it’s more likely the Case of the Illegal Interloper. You need to rethink your entire approach to this situation, and hire an elder-law attorney.

I assume your father’s girlfriend did not leave much, if anything. You need to stop waiting for information to come through the mail, and stop treating this like an unfortunate series of events. A power of attorney can, with the cooperation of the principal — your father — add themselves as a joint owner on a bank account, rather than just a co-signer.

Your father’s girlfriend did what this nursing home did to this reader’s elderly cousin. She isolated him and took control over his bank accounts, manipulated him into signing over his bank accounts rather than just signing over the right to make withdrawals on those bank accounts, and abused her role as power of attorney to help herself to his estate.

The Securities Industries and Financial Markets Association, or Simfa, has a checklist for financial abuse: “Numerous withdrawals of smaller amounts.” Tick. “Changing power of attorney or the beneficiaries on insurance or investment accounts.” Tick. She went one step further: She liquidated the whole kit and caboodle.

As Simfa warns, she is essentially a caregiver who becomes overly interested in your father’s finances rather than his care. It recommends people in your position to contact an Eldercare Locator information specialist toll-free on 800-677-1116 weekdays, 9:00 a.m. to 8:00 p.m. Eastern time. It has both English- and Spanish-speaking specialists.

Laws overseeing fiduciary relationships

Many states have laws that protect against the abuse of fiduciary relationships. “A beneficiary designation can also be contested for lack of capacity if there is evidence the account holder was not of sound mind when they signed the form,” according to Harrison Estate Law, a Gainesville, Fla.-based law firm.

“Many financial institutions allow account holders to change their beneficiary designations online,” the law firm adds. “This creates a greater chance for undue influence or fraud, but it can also make it harder to win a beneficiary-designation challenge. It also motivates banks and financial institutions to defend beneficiary-designation challenges.”

Let this give you the momentum to proceed with legal action. Harrison Estate Law cites a case where a Florida appeals court ruled that a pay-on-death designation in favor of the deceased’s caretaker should be invalidated due to undue influence. The caretaker had used her personal relationship with the deceased to change the beneficiary designation.

The court said that since payable-on-death and transfer-on-death accounts are substitutes for a will, they “are subject to challenge on grounds such as undue influence, fraud, duress and overreaching.” Challenging such designations require bank records, and other paperwork; an experienced attorney can help you with the heavy lifting.

Power of attorney is a powerful legal document, but their responsibilities last only while the person is alive. The executor of the will — if one exists — or administrator of the estate should take over the accounting of the remaining assets and debts. You can petition the court to remove your father’s girlfriend, if she is the executor/administrator.

Her actions should also be reported to the local police or sheriff’s office and your District Attorney. “It is important to note that the principal’s financial assets are always considered to belong to the principal, not the agent,” according to the McAndrews Law Offices, which has branches in Pennsylvania, Delaware and Virginia.

Your father’s case illustrates that you can’t always rely on banks or lawyers to be on the lookout for elder financial abuse and suspicious behavior. You have to be the watchful one because, as I told this woman who feared her father was being isolated from the rest of the family, early intervention is ideal. And so is a prompt response when the damage is done.

This happened within the last three months of his life. Don’t allow your inheritance to slip away. You, your sister and your father deserve justice.

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‘She cleaned him out’: My dying father, who had stage 4 cancer, moved in with his girlfriend. In 3 months, she sold his house and pocketed the money.

My mother was diagnosed with Alzheimer’s. My siblings created chaos in her life. Should I help my mom change her will?

By Quentin Fottrell

‘After suffering elder abuse by two siblings, she moved in with me a year ago, and is now under professional guardianship/conservatorship’

'Our mother is still able to state her preferences, and knows who we are.'

MarketWatch illustration

Dear Quentin,

My mother created a trust and a will in 2013, creating the distribution of equal shares of her substantial estate among myself and my three siblings upon her death. Her estate includes financial accounts and several properties. 

Two years ago, in 2019, she was diagnosed with Alzheimer’s disease. Since that time, it’s been chaos dealing with litigation related to my siblings. After suffering elder abuse by two siblings, she moved in with me a year ago, and is now under professional guardianship/conservatorship.

None of my siblings help with her care. One of my siblings has cut off communication with our mother altogether. Another one visits regularly, but it’s really spying on behalf of the other two, one of whom moved away 46 years ago as a teenager and visited once, prior to our mom’s diagnosis. 

‘One of my siblings has cut off communications with our mother altogether. Another one visits regularly, but it’s really spying on behalf of the other two.’

Our mother is still able to state her preferences, and knows who we are. She can’t change the trust, according to her attorney, but she can change her will.

Due to my siblings’ behavior toward her, she has stated consistently that they should receive “not a penny” from her estate. She would need help to fulfill this desire. 

I’m torn. Should I help her? I don’t blame her for how she feels. It seems obvious what they’re really after is her estate. For nearly a year they wouldn’t let me near her, knowing we’ve always been close. They also conspired to have me written out of her will. Fortunately, her attorney recognized their undue influence and refused to do so.

I estimate she has already spent $100,000 in attorney and guardianship fees, protecting herself from them. 

What should I do? The whole thing is heartbreaking. 

The Remaining Child

***

Dear Remaining,

What you propose is not impossible, but you are playing a high-stakes game. Just know that you would be leaving yourself open to further litigation and accusations that you are putting undue influence on your mother — something you have alleged your siblings have attempted to do in the past. I’m not doubting your intent or your story. I’m merely giving you a heads up on what turmoil may lie ahead. That said, what you suggest is not impossible, despite your mother’s diagnosis. 

If your mother wishes to change her will and you want to help her with that, you must first show that your mother has “testamentary capacity” to make such changes. She must understand what it means and the effect it will have — in this case, disinheriting her other legal heirs. She must also understand the full nature of her assets and their value. Your mother would likely also have to provide a reason for making these changes. It may not be easy.

You don’t give details on the nature of the current litigation, but I assume your siblings have made efforts to wrestle control of your mother’s trust and estate, and have challenged the existing conservatorship. This is not an uncommon sequence of events when siblings are at war, and when an ailing parent owns a sizable estate. To prove testamentary capacity, you will have to access medical records and enlist the help of doctors, nurses, psychiatrists and/or neurologists.

Legal precedent

Every case is unique, but there is legal precedent of a family member who unsuccessfully tried to overturn a beneficiary posthumously. Timothy Gallagher, an attorney with Reminger Attorneys at Law, cited the case of Webb v. Anderson Children Trust, et al., 2020, where a sister sued her brother over their mother’s individual retirement account (IRA) beneficiary designation. The sister alleged their mother lacked the capacity to make changes due to a recent dementia diagnosis.

In this case, the brother had their mother take two separate mental-status exams. “The trial court found that the sister did not prove the mother lacked capacity to make the change to the IRA beneficiaries,” Gallagher writes. “The mere fact of a dementia diagnosis was not enough to show lack of capacity, and the testimony of the financial advisor was [that] the mother was strong and confident in 2009 when she made the change.”

You and your mother will have to weigh how strongly she feels about disinheriting her children, taking her mental and emotional state into account. You will be inviting more conflict into your life. Such court cases often linger for years, and can usurp hundreds of thousands of dollars — if not more — in legal fees.

I clearly don’t know all the facts in this case or both sides of the story. With that in mind and in good faith, I urge you to proceed meticulously and cautiously.

Full Article & Source:

My mother was diagnosed with Alzheimer’s. My siblings created chaos in her life. Should I help my mom change her will?

Panel urges disbarment over conflict of interest

By Sarah Mansur

A Woodstock attorney who received nearly $400,000 from his mother’s assets after redrafting her will six years before she died should be disbarred, an Attorney Registration & Disciplinary Commission panel has found.

The ARDC hearing board decided Jeffrey J. Keck had a conflict of interest when he drafted a new will for his mother, naming himself as the sole beneficiary and disinheriting his sibling.

It also found Keck, a sole practitioner, made false statements while testifying in probate proceedings related to his mother’s estate.

Keck denied allegations of misconduct, but he did not participate in the disciplinary hearing before the board.

Keck prepared wills for both his parents in 1980, according to the ARDC hearing board report filed April 27.

His father’s will left his entire estate to Keck’s mother, Margaret. If Margaret predeceased her husband, the estate was to be divided between Keck and his only brother, William.

Margaret’s will was similar, according to the report.

In April 2004, Margaret executed a new will that named Keck as the sole beneficiary, the report states. The new will does not list an attorney, nor does it state Keck or his brother were present.

William testified he only became aware of the new will after his mother died in May 2010.

Shortly after her death, Keck submitted a claim to AIG as the sole beneficiary of his mother’s life insurance policy. In July 2010, AIG paid Keck $252,343.90, the entire amount under the policy.

In December 2010, William filed a petition for probate and proof of his mother’s will. Several months later, he contested her will in court.

Keck testified in a deposition for the probate matter in July 2011 that he didn’t know who drafted his mother’s 2004 will, according to the board report.

When the dispute over her will went to trial in January 2014, Keck testified he prepared a draft will for Margaret in 2004 and that the draft appeared to be the same will that was executed in 2004.

In February 2014, a Kane County judge set the will aside on the grounds of undue influence, according to the hearing board report.

The court also revoked Keck’s status as executor and appointed Patrick M. Kinnally as the administrator for the estate.

In November 2015, Kinnally’s accounting showed the estate assets totaled $115,014.84. After payment of fees and expenses, the net assets totaled $42,601.30, of which Keck and William each received $21,300.65.

The hearing board’s report states Keck also received $88,500 from Margaret’s checking account and more than $47,000 from the value of her stocks.

All told, Keck received at least $387,843.90 from his mother’s assets, while his brother netted roughly $21,300, according to the report.

“When we consider all of the foregoing evidence, we conclude that [Keck] abused his position of trust and influence with respect to Margaret to dishonestly convert funds from her during her lifetime and to obtain sole possession of the proceeds of her life insurance policy and other assets after her death. We also find that he engaged in dishonesty based upon his involvement in the presentation of false insurance beneficiary documents,” the hearing board report states.

The hearing board — which consisted of James B. Pritikin, Nancy Hablutzel and Audrey Hauser — recommended Keck be disbarred.

Keck was licensed to practice in Illinois in 1978. He didn’t respond to a request for comment.

Findings by the hearing and review boards are strictly recommendations. Any discipline is decided by the Illinois Supreme Court.

This case is In re Jeffrey Joseph Keck, 19PR0027.

Full Article & Source:
Panel urges disbarment over conflict of interest

North County Family Claims Elder Abuse, Fighting Over Wealthy Businessman’s Estate

NBC 7’s Mari Payton spoke to family members who said their father was duped by a woman who only wanted the man’s money.

Source:
North County Family Claims Elder Abuse, Fighting Over Wealthy Businessman’s Estate

Report On Vulnerable Investors: Elder Abuse, Financial Exploitation, Undue Influence And Diminished Mental Capacity

“We’re caught between a rock and a hard place” said one financial services provider about their challenges in responding to the increasing number of elder financial abuse or mental capacity concerns that investment firms are seeing. “We want to be part of the solution, but if we suspect something is going on, we don’t know where to turn, what we are supposed to do, or who to reach out to. We’re worried we’ll get sued or in trouble with the regulators if we say something, and equally worried if we don’t. We need a new system so we can be part of the solution”.

Concerns such as this have become top of mind for the securities sector, with older adults, advocates, financial firms and regulators in agreement that something needs to change. In response, the Canadian Foundation for the Advancement of Investor Rights (FAIR Canada) and the Canadian Centre for Elder Law (CCEL) undertook a one-year project to understand the key concerns from stakeholders, look at international laws and best practices and make recommendations.

On November 16, FAIR Canada and the CCEL released their report aimed at helping the investment firms in these situations, while at the same time helping protect vulnerable adults who are at risk of elder financial abuse, financial exploitation, undue influence and diminished mental capacity.

“In this report we are calling on securities regulators, and in the investment industry to really engage on these issues. There is broad consensus amongst seniors, advocates and the investment industry that there needs to be protocols in place which balance an investors’ right to make their own choices, with the reality that the investment firms are in a unique place to prevent or stop financial exploitation of vulnerable investors”, says Marian Passmore, COO and Director of Policy at FAIR Canada, and a co-author of the report.

“These recommendations also help the investment industry as they try to play a role in abuse prevention. This report offers some key practical solutions, which includes recommending a ‘Legal Safe Harbour’ for reporting concerns”, says Laura Tamblyn Watts, Senior Fellow and Staff Lawyer at the CCEL. “However, the securities regulators need to create a clear ‘Conduct Protocol’ so investment firms know what to do and how to do it, in order to qualify from the legal exemption.”

The report makes 6 recommendations to Canadian Securities Regulators:

1. Require investment firms to make reasonable efforts to obtain the name and contact information of a Trusted Contact Person for each client, who can be contacted in case of suspicion of abuse or diminished mental capacity, so long as they themselves are not suspected of financial abuse or exploitation of the client.


2. Allow authorized individuals within an investment firm to place a Temporary Hold on Trades and Disbursements of funds or securities when there is a reasonable suspicion of financial abuse – that has occurred, is occurring or will be attempted – or where the client has lost the capacity to provide instructions.


3. Provide a Legal Safe Harbour for investment firms and financial service providers who reach out to appropriately report suspicions of financial abuse or mental incapacity.


4. Create a Conduct Protocol that defines key terms and sets out the steps firms and financial services representatives should take to identify and protect vulnerable clients. This Conduct Protocol will require that investment firms mandatorily report suspected financial abuse of vulnerable investors to the appropriate securities regulator.


5. Mandate Specific Education and Training for all investment firms in the areas of elder abuse, undue influence, mental capacity issues, enduring powers of attorney and ageism and have the required proficiencies.


6. Require that Investment Firms Become Familiar with Outside Resources and Responders and learn how and when to appropriately refer a case of suspected elder financial abuse, undue influence or diminished mental capacity to local responders.

The report is accompanied by an easy-to-read Executive Summary. In addition, here are some Quick Facts about Elder Abuse, Financial Exploitation and Undue Influence. Please see the case studies of the most common scenarios used in the consultation process.

Full Article & Source:
Report On Vulnerable Investors: Elder Abuse, Financial Exploitation, Undue Influence And Diminished Mental Capacity

Police looking for woman accused of stealing from elderly man

Lanique Elaine Pettus

A woman accused of stealing nearly $10,000 from an elderly man by falsifying his signature on checks and using his debit card to make rent and car payments is being sought by authorities, according to the Clark County District Attorney’s Office and court documents.

Lanique Elaine Pettus, 32, is wanted on one count of exploitation of an older person, 16 counts of forgery and six counts of fraudulent use of credit card; all felonies, according to a criminal complaint filed in a Henderson courthouse.

The 80-year-old man was victimized through “deception intimidation or undue influence” last year from Feb. 1 to March 31, according to the complaint.

The fraudulent checks were written for amounts ranging from $150 to $780, and the debit card was used for payments in the range of $268 to $888, totaling about $9,500, according to the complaint.

Prosecutors today released photos of Pettus allegedly cashing the fraudulent checks at valley banks.

It wasn’t immediately clear when the case was filed.

Anyone with information on her whereabouts is asked to contact Crime Stoppers at 702-385-5555 or crimestoppersofnv.com

Full Article & Source:
Police looking for woman accused of stealing from elderly man

AG: Ex-Exeter lawyer financially exploited woman

BRENTWOOD — A Newfields resident and former Exeter lawyer has been indicted on five charges alleging he financially exploited a 71-year-old woman.

Thomas U. Gage, 57, of Newfields, was indicted in Rockingham Superior Court last week on five counts of financial exploitation of an elderly, disabled or impaired adult, the state attorney general’s office announced Monday.

The indictments allege that Gage, through the use of undue influence, acquired possession or control of five credit cards allegedly belonging to the woman. The total amount of the alleged exploitation is $87,165 all between January 2015 and January 2016.

Gage is a former attorney who practiced in Exeter, the attorney general’s press release said. He was disbarred in 2016 for unrelated reasons.

The maximum penalty for each indictment is 7½ to 15 years in state prison and/or a fine of $4,000.

The case is being prosecuted by Brandon Garod, assistant attorney general in the office’s Elder Abuse and Exploitation Unit.

Indictments indicate grand jury found enough evidence to bring the matter to trial.

Full Article & Source:
AG: Ex-Exeter lawyer financially exploited woman

Senior Investors Are the Focus of New “Principal Consideration” in FINRA Sanctions

On April 10, 2017, the Financial Industry Regulatory Authority’s (FINRA) National Adjudicatory Council (NAC) introduced new Sanction Guidelines (Guidelines) which allow the NAC and FINRA staff to take into consideration the vulnerability of customers in determining appropriate sanction levels.1 The last update to the Guidelines occurred approximately two years ago, and included changes related to unsuitable recommendations and misrepresentations.2 Last month’s changes to the Guidelines provide for the first time a “principal consideration that analyzes whether a respondent has exercised undue influence over a customer.”3 Now listed as a specific factor for adjudicators and FINRA staff4 to consider in determining appropriate sanctions is “[w]hether the respondent exercised undue influence over the customer.”5

I. New Guidelines Codify Past Practices and Apply Immediately

Prior to the new “principal consideration,” FINRA has historically acknowledged the vulnerability of customers in certain decisions.6 However, including customer vulnerability and a respondent’s undue influence over a vulnerable customer when analyzing sanctions has never been specified.

This new “principal consideration” applies to all FINRA cases immediately, unlike the recent senior investor-related rulemakings (new FINRA Rule 2165 (Financial Exploitation of Specified Adults) and amended FINRA Rule 4512 (Customer Account Information)), which are not effective until February 2018. The NAC and applicable FINRA staff can immediately take the new “undue influence” factor into consideration when adjudicating, prosecuting or negotiating disciplinary actions.

II. New FINRA Rule 2165 and “Undue Influence”

Neither FINRA Rules nor By-Laws define the term “undue influence.”7 Definitions in new FINRA Rule 2165 may help the industry to understand what it means for a respondent to “exercise undue influence” over a customer. The concept of undue influence arises in Rule 2165’s “financial exploitation” definition as “an act or omission . . . to . . . obtain control, through deception, intimidation or undue influence, over the Specified Adult’s8 money, assets or property.”9

It is possible that the NAC or FINRA staff may look to whether a senior investor was deceived or intimidated by the respondent, or whether the respondent exercised an inappropriate level of “control” over an investor given that investor’s mental capacity or the availability of a designated family member or friend. Presumably any influence over a customer’s decisions would only be considered “undue” if there was some level of deceit, self-dealing or other bad intent. However, this conclusion is not clear from the Guidelines.

III. Expect Continued Scrutiny of Firm Interaction with Senior and Vulnerable Investors

The senior-centric update to the Sanction Guidelines should come as no surprise. Over the past two years, FINRA has significantly increased its focus on senior investors, first with a joint report with the U.S. Securities and Exchange Commission in early 2015,10 followed closely by the launch of its Securities Helpline for Seniors,11 the topic’s rising prominence in the latest examination priorities letters,12 and most recently with the adoption of new FINRA Rule 2165.13 This scrutiny is expected to increase, with a focus on related sales practice examinations and subsequent enforcement actions.

Full Article & Source:
Senior Investors Are the Focus of New “Principal Consideration” in FINRA Sanctions

Arizona: Financial Exploitation of Seniors is Difficult to Prove

Page Giacin became suspicious of the man who was taking care of her terminally ill father last summer. The caretaker was a cowboy the family had known for years, a cowboy Giacin's father, Don Steinman, did not always agree with. But because Giacin and her brother lived far away from their father's Arizona ranch, they understood why Steinman had chosen the cowboy.

Steinman died in August, at around the same time Giacin's stepmother, Barbara, was diagnosed with cancer. The cowboy, whose name we are not disclosing because he is not charged with any wrongdoing, stuck around to take care of Barbara.

"She told me she was scared of being alone and he was willing to stay," Giacin said.

Barbara Steinman died in January. Giacin learned that Barbara had written a will before she died and left the ranch to the cowboy. Now, Giacin and her brother had hoped to keep their father's property in the family for generations.

"This was his legacy to his grandchildren, to all of us," Giacin said. "He's buried on the land. In order to visit the grave, I have to be able to go onto the property."

What caused Don and Barbara Steinman to leave the property to their caretaker is unknown. The attorney who created the latest will told CBS 5 Investigates that Barbara Steinman visited his office in October and appeared competent.

Investigators said it is often difficult to tell the difference between a gift to a caretaker or family member and financial exploitation.

Full Article, News Video, and Source:
Financial Exploitation of Seniors Difficult to Prove

4 Risk Factors For Elder Abuse

With financial abuse, the best place to start is to observe behavior. There are certain warning signs that they are vulnerable. Here’s what to look for:

– Poor Physical Health. Those who are physically compromised are unlikely to be focused on financial matters. They are often vulnerable to swindles.

– Cognitive Impairment. When the ability to do basic things like read a banking statement or balance a checkbook declines, that’s when you have to pay attention. Those with declining math skills will not be asking important questions about new investing “opportunities.”

– Difficulty in Activities of Daily Living.If a person has trouble feeding themselves, bathing or shopping, that’s a big set of red flags. That also means that they will have trouble managing money.

– Social Isolation. Are they all alone? Then they won’t have the support of a network of peers, who could warn about scams.

In general, having strong social connections — whether with family or friends — can help curb financial abuse. Others can vet potential swindles.

“Fraudsters and financial exploiters use undue influence – the substitution of one person’s will for the will of another (Quinn, 2000) – to limit and control an older person’s social interactions, thereby creating a sense of powerlessness and dependency.

This makes elders easier to manipulate, even if they are mentally competent. In one of the elder fraud cases I studied, a caregiver isolated the older person from her family and withheld food to coerce her to sell property and fire a long-term accountant.”

The best safeguard against financial abuse? Getting your entire family and social network involved. Talk to your older relatives often. Have they been approached by “new” friends? Have they been offered a “unique” investment opportunity. If you listen closely enough, you’ll be able to stop scams before they go too far.

Full Article and Source:
4 Risk Factors For Elder Abuse

Florida Will Overturned On Finding of Undue Influence By Surviving Spouse

Jeffrey Skatoff

Written by Anya Van Veen • March 19th, 2015
• Probate Litigation,

In Blinn v. Carlman, the Fourth District Court of Appeal upheld a Florida probate court’s invalidation of a will based upon undue influence by a surviving spouse.  Overturning a will on the grounds of undue influence by a surviving spouse is challenging, and this case gives insight into the kind of facts that support a finding of undue influence, and the standard the Florida appellate court uses to review the Florida probate court’s decision.

The law regarding undue influence was summarized by the Florida appellate court as follows:

“When a will is challenged on the grounds of undue influence, the influence must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.” Levin v. Levin, 60 So. 3d 1116, 1118 (Fla. 4th DCA 2011) (quoting Raimi v. Furlong, 702 So. 2d 1273, 1287 (Fla. 3d DCA 1997)). The doctrine of undue influence is based on the theory that the “testator is induced by various means, to execute an instrument which, although his, in outward form, is in reality not his will, but the will of another person which is substituted for that of testator.” In re Winslow’s Estate, 147 So. 2d 613, 617 (Fla. 2d DCA 1962) (citation omitted).

“Undue influence is not usually exercised openly in the presence of others, so that it may be directly proved, hence it may be proved by indirect evidence of facts and circumstances from which it may be inferred.” Gardiner v. Goertner, 149 So. 186, 190 (Fla. 1932) (citation omitted).

The Florida Supreme Court has established a set of non-exhaustive factors for courts to consider on the issue of undue influence or active procurement: (a) presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution.  In re Estate of Carpenter, 253 So. 2d 697, 702 (Fla. 1971).

The facts in this case were strong.   In 2007, appellant Demetra Blinn married Richard Blinn when he was 82 years old.  From 2006 on, Richard suffered from progressive dementia.  The evidence showed that Richard’s behavior was inappropriate, he made imprudent financial decisions, his business was failing because of his deteriorating condition, and he sent money to mail-away scams.  In June 2011 Richard was found totally incapacitated.  His daughter, appellee Patty Carlman, was appointed as his guardian.

Patty sought to invalidate Decedent’s April 2, 2008 will.  The April 2008 will left everything to Demetra.  The prior wills left everything to Patty, including a will that was executed eight months after Richard met Demetra.

The appellate court noted that the April 2008 Will was executed “under most suspicious circumstances.”  Two lawyers, a referring lawyer and a drafting lawyer, were involved.  The testimony of the lawyers sharply conflicted regarding the preparation of the 2008 will.  As the appellate court stated: “If both lawyers are to be believed, Richard’s April 2008 will drafted itself and miraculously appeared at the drafting lawyer’s office on April 2.”

Demetra professed no knowledge of the appointment with the drafting lawyer until the morning the will was executed, despite the fact that the drafting lawyer had obtained a copy of Demetra’s earlier will and trust.  Demetra provided the drafting lawyer two “doctor letters” stating that both Demetra and Richard were of sound mind.  The “doctor letters” had been written nine months before the execution of the 2008 will.  The appellate court stated that “This conduct suggests that, on her own, appellant was trying to overcome legitimate concerns about the circumstances surrounding the April, 2008 will.”

In addition, the Florida probate court found that both before and after the marriage Demetra alienated Richard from his family.  Evidence showed that Demetra aggressively pushed the idea onto Richard that his daughter Patty was stealing from him, without any evidence of Patty’s wrongdoing.  Indeed, evidence was presented of a voice message accidentally left by Demetra, where Demetra was screaming at Decedent about how Patty was stealing from Richard. Additional evidence showed that Demetra requested beneficiary changes on life insurance, and directly contacted the drafting attorney’s law firm to send her Richard’s estate planning documents and a durable power of attorney in her favor.  The Florida probate court found that if appellant “were so bold as to openly display such influence over [the decedent], then the court could ‘reasonably infer that similar or greater influence was occurring in the dark during their marriage’  and that decedent was “susceptible to undue influence due to his declining physical state, anxiety disorders depression, and progressive dementia.”

The Florida probate court’s “findings in a will contest shall not be overturned where there is substantial competent evidence to support those findings, unless the probate judge has misapprehended the evidence as a whole.”  The Florida appellate court found that the final judgment invalidating the will was supported by substantial competent evidence and affirmed the judgment.

 Anya Van Veen is a Florida probate lawyer who also handles trust litigation and guardianship litigation.

Full Article & Source:
Florida Will Overturned On Finding of Undue Influence By Surviving Spouse

Exploitation of Elderly Woman by a "Friend" is Another Chapter in an Increasingly Common Story

No one who knew Erma Louise Giaccetti would have ever taken her as someone capable of being conned.

At age 84 in 2008, the Independence woman was a presence. She stood 5 feet 10, a railroad engineer’s widow with a sweep of coiffed white hair, a thin cigarette poised in her fingers and a gossipy tongue that, to the dismay even of her family, could turn as cold as it was more often kind.

Joyce Ciaccetti

“She was very domineering,” said daughter-in-law Joyce Giaccetti. “She would talk constantly about people. I think that’s why she didn’t have many friends.”

But in the summer of 2008, she got one: Linda Gayle Scaife, a neighbor from decades ago who had returned to the Kansas City area, knocked on Louise Giaccetti’s door and suddenly became what the widow called her “new best friend.” Giaccetti couldn’t have been more wrong. Over the next three years, until her death, her family ties were destroyed. She lost her home and most of her life savings.

As revealed by family and court documents, the deceit and theft perpetrated by Linda Scaife could easily serve as a cautionary tale for all those concerned about financial exploitation of the rapidly growing number of elderly Americans.

The scams have a vast range: greedy children and paid caregivers writing checks on their elders’ savings, identity and Medicaid fraud, unscrupulous financial advisers, and “sweetheart” scams that use romance to prey on people’s affections and bank accounts.

“The first thing I can tell you is that anyone who tells you they know how much of this is going on is blowing smoke. We don’t know,” said Doug Shadel, an expert on financial fraud with AARP in Washington state. “The reason we don’t know is that people are embarrassed to admit they’ve been taken. There is a lot of suffering in silence.”

Full Article and Source:
Exploitation of Elderly Woman by a "Friend" is Another Chapter in an Increasingly Common Story

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