Clifford Gravett, Esq.

 

A man knew he was going to inherit a fortune as soon as his father, who was very sick, died. The man was determined to find a woman with whom he could share his vast inheritance. A few days later, he happened to meet a woman who took his breath away. He cut right to the chase and told her, “I may look like just an ordinary guy, but in just a month or two my father will die and I will inherit $20 million.” Impressed, the woman went out on a date with him and then, three days later, to his chagrin, she became his step-mother.

The pages of law journals and case books are littered with cases of children, relatives, and “helpful” neighbors engaging in acts of undue influence against an elderly person in order to get a piece of their estate or trust property. In these cases, there are generally two types of undue influence: what I would call the blatant cases, and then the “accidental” cases.

The blatant cases are like those from the movies, where a shyster moves in with Grandma, convinces her to name him as the beneficiary of her trust and then, mysteriously, Grandma dies two weeks later. I hope that none of my readers fall into that category.

The other category, the “accidental” undue influence is more common. In this type of circumstance, a family member is the primary caregiver for an aged parent, often for many years, and then, when the parent dies, it turns out that the family member who provided all the care is named as the sole beneficiary of the parent’s trust or the sole heir in the will. If the caregiver has played any role in getting the bequest, he or she has probably engaged in undue influence.

I call this “accidental” undue influence because the family member who does it often does not know that what he or she is doing is against the law and often, perhaps rightly so, feels that he or she is entitled to inherit because he or she provided all of the end-of-life care to the parent.

The law in Nevada is that an estate plan or trust distribution is the product of undue influence if there is a disposition of a person’s estate which “overcomes the will without convincing the judgment.” In cases where a person in a position of special trust (such as a live-in caregiver, doctor, etc.) receives a greater disposition of a person’s estate than they would get at law, undue influence is presumed.

What all this means is that if you’re a caregiver, even if you’re a child or family member, you need to be very careful in accepting bequests, gifts, etc. from the person to whom you are giving care. Alternatively, if you are a parent who desires to give a special gift to your caregiver, it is best to first get a doctor’s certificate as to your competence and to meet with an attorney prior to making the gift or bequest. Otherwise, once you pass, it is possible that other heirs, who did not get a special gift, may challenge the caregiver’s gift in court.

Clifford Gravett is an attorney with the Virgin Valley law firm of Bingham Snow & Caldwell. He is licensed to practice in Nevada, Arizona and Utah. He can be reached at 702-346-7300, cliff@binghamsnow.com, or 840 Pinnacle Court, Suite 202 in Mesquite.