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Most parents want to treat their children fairly in their estate planning, but fair doesn’t necessarily mean equal. We all know there are perfectly valid reasons for why a parent might opt to NOT divide the family pie in equal shares, such as compensating a middle-aged child who’s given up part of his or her own life to care for mom or dad. This type of scenario comes up all the time in undue influence cases where one child — the “dutiful” caregiver — is favored in mom or dad’s will. If you’re a trusts and estates lawyer and you haven’t dealt with this kind of case yet, just wait, sooner or later you will.

The new normal: middle-aged children caring for elderly parents:

Ask people where they want to end their lives, and for most the answer is home. For more and more elderly Americans that means living with a middle-aged child. According to a MetLife study about a quarter of all adult children over the age of 50 provide personal care to parents in need. Not surprisingly, as compared to the rest of the U.S. this trend is especially pronounced in Florida where 1 in 5 residents is age 65 or older.

But just because you care for an aging parent, is it fair to get a bigger slice of the inheritance pie? If the answer to that question is in any way related to the economic costs borne by family caregivers, the answer is clearly yes. According to the MetLife study the total estimated aggregate amount of wages, pension, and Social Security benefits sacrificed by adult children who become their parents’ care givers is nearly $3 trillion.

So yeah, from an economic standpoint the case for favoring a care-giver child over an equally-loved — but unavailable — sibling in a parent’s estate plan is compelling. So why do these cases end up getting litigated under some undue-influence theory so often?

Should the presumption of undue influence extend to adult children caring for elderly parents?

Undue influence is presumed when: (1) a person with a confidential relationship with the testator, (2) was active in procuring or securing the preparation or execution of the devise and (3) is a substantial beneficiary thereof.

Every middle-aged child favored by mom or dad for the sacrifices made to personally care for an ailing parent gets caught up in this three-part test. There’s no escaping it. Consider this typical scenario: did mom “confide” in the daughter whose home she was living in, of course (strike 1); if mom’s too old or frail to drive, then was daughter “active in procuring or securing the preparation or execution of the devise,” of course, who else was going to drive mom to lawyer’s office (strike 2); and finally, if mom had the audacity to actually demonstrate her gratitude for daughter’s sacrifice by favoring her in her will, then presto: daughter’s now a “substantial beneficiary” of mom’s will (strike 3).

Where the Presumption of Undue Influence Should Not Apply: Consider the “Dutiful Son” and the “Dutiful Daughter” Exceptions, by Alexander S. Douglas II:

Against this backdrop it shouldn’t come as a surprise that Florida’s appellate courts are slowly modifying the hard edges of our common law involving undue influence claims against adult children caring for elderly parents. Estate planners and litigators alike owe it to themselves and their clients to make sure they’re aware of these shifting winds. And lucky for all of us we now have an excellent Florida Bar Journal article by Alexander Douglas, a practicing probate litigator, that lays it all out for us. Here’s an excerpt:

From the plaintiff’s perspective, employing the Carpenter factors to raise a presumption of undue influence and shift the burden of proof is a powerful strategy to win an undue influence case. However, the Third and First District courts of appeal have carved out a significant defense to the presumption of undue influence when children and parents are involved. The cases of Carter v. Carter, 526 So. 2d 141 (Fla. 1st DCA 1988), the “dutiful son case,” and Estate of Kester v. Rocco, 117 So. 3d 1196 (Fla. 1st DCA 2013), the “dutiful daughter case,” outline a defense to the presumption of undue influence that every practitioner should know about and which may prevent the application of the presumption and burden shifting normally available when the Carpenter factors are shown. …

It is apparent why the presumption of undue influence does not apply in situations involving a spouse helping a spouse and dutiful children helping a parent. In such specific, natural, and common family relationships, the Carpenter factors will always be present and it is unfair to give the plaintiff in any will or trust contest the definitive advantage that the presumption of undue influence affords. It is equally likely in such natural positions of confidence and trust that a spouse or dutiful child would be involved in a settlor’s or testator’s affairs. As a matter of public policy, our society should encourage family members to faithfully assist their spouses and parent in such situations. Other evidence of undue influence is admissible to prove over reaching, and indeed there are cases in which a spouse (particularly a second spouse) or a child does take advantage of a family member. Nevertheless, such situations should not be presumed in the same manner as if a neighbor, caretaker, or acquaintance were performing the same acts.

Mr. Douglas also prepared a PowerPoint presentation expanding upon his article that’s a must read for any practitioner litigating one of these cases. I asked Mr. Douglas if I could post a copy of his presentation to the blog and he graciously agreed. Good stuff, highly recommended.