One child moves in with parent and “surprise” inherits everything – Part 2
- In this column I acknowledge the real concern about “legacy hunters” and begin addressing that concern by explaining applicable legal principles.
I’ve climbed down from my high horse after lecturing, last week, about meeting the needs of a last surviving parent.
My lecturing was in response to a question posed by a Financial Advisor. He asked about a scenario that in his experience is quite common: A manipulative sibling moves in with a cognitively declining parent under the guise of helping out, but with the intention of prospecting for gold.
After the parent dies, “surprise!”:
- There’s a new will leaving most of the estate to the sibling, and/or
- The sibling shows up on title as a joint owner of property which automatically goes to them because of their “right of survivorship”.
I climbed up on my high horse suggesting that if you make your parents the priority they should be, visiting often and meeting all their needs, a sibling (or anyone else for that matter) will have less opportunity to move in and eat your lunch.
I maintain that suggestion.
But I will now climb down to address the very real concern about a sibling (or someone else) sidling up to your parent for the purpose of manipulating their estate plan.
A “legacy hunter” is defined in the Merriam-Webster dictionary as “a person who flatters, courts or acts very nice to rich or elderly individuals to get money or property in a will.”
It’s not just siblings you have to worry about.
There’s the new, often much younger, romantic partner.
Or a new friend who starts spending a lot of time with your parent.
The older we get, the closer we come to our end. We have one, last gasp of control over our world, and that’s what we do with whatever wealth we have left on our death.
Legacy hunters know that a relatively small investment of time can generate a windfall of tax-free capital gains!
I anticipate that it will take a series to give this issue the attention it deserves because I can fit only so much into a 500–750-word column.
I will explain some applicable legal principles in this column. This will provide a legal foundation for subsequent columns where I intend to provide suggestions about how you might deal with a legacy hunter situation.
One important legal principle is that a legal step taken by someone who lacks the cognitive capacity to take that legal step can be reversed.
Another is that for a will to be valid, it is not enough for the will-maker to have the capacity to make the will. The will-maker must also know and approve the contents of the will.
Then there’s the legal doctrine called “undue influence” which can come into play even if the will-maker both had cognitive capacity and knew and approved the contents of the will or other document they have signed.
Undue influence is something more than influence. In the words of our Court of Appeal in Longmuir v. Holland, 2000 BCCA 538, it is “…influence which overbears the will of the person influenced so that in truth what she does is not his or her own act”.
If someone is under undue influence when they change their will, change title to their home or transfer money or property, these transactions can be undone by the court.
These legal principles can be used to reverse steps taken by a manipulative legacy hunter.
But don’t sit back and wait until your parent has passed away in the hopeful expectation that a lawsuit will fix things, restoring what you perceive to be your rightful inheritance.
Lawsuits are grossly expensive. And outcomes are uncertain.
For the legal principles I’ve described to have teeth, there must be evidence to prove the lack of capacity, to prove the lack of knowledge and approval or to prove that a parent was subject to undue influence.
Take capacity for example.
You might sit back and relax about what a legacy hunting sibling might be doing to manipulate your parent because they have been diagnosed with dementia, confident that the diagnosis will automatically reverse whatever changes your parent makes to their estate plan.
But a medical diagnosis of dementia doesn’t mean a loss of legal capacity.
Capacity is a spectrum.
At one end of the spectrum is someone who is perfectly crisp and clear about everything. At the other they don’t recognize their own children.
Having the legal capacity to make a will or transfer property is somewhere along that spectrum. A medical diagnosis of dementia doesn’t say anything about where the patient is along the capacity spectrum.
The person with the most evidence about your parent’s cognitive capacity at any point in time is the person who is spending the most time with your parent: the fox in the henhouse.
Proving undue influence is also a challenge.
There might have been influence. Even a lot of influence. But it might not be enough to be found by a court to have “overbore the will” of your parent.
Stay tuned for next week’s continuation of this series. In the meantime, I advise you to consult immediately with an estate litigation lawyer if you fear a “legacy hunter” is at work or if you feel you have received less than your rightful inheritance. These can be very time sensitive issues and rights can be lost if time deadlines are not met.
