Probate

Probate litigation often arises because siblings take issue when they are not treated equally by their parents.  In those cases, allegations of undue influence by the favored child/children are oftentimes made by the other siblings. Probate attorneys should pay particular attention to the following decision given this language from the Court of Appeals:

… courts must proceed with caution in analyzing these situations and that an automatic presumption that any adult child who assists an aging parent is presumed to be in a dominant role and exert undue influence over that parent’s decisions is ill-advised. We caution that love, attention, and occasional assistance provided by an adult child typically and naturally arise from a sense of filial duty. It seems unreasonable for our courts to rely exclusively upon care, compassion, or generosity by an adult child for their ailing parent and then render such actions suspect. These relationships must be carefully examined in light of the surrounding circumstances before any conclusions regarding that child’s dominance and influence be made. (emphasis added).

Here is the decision:

Bruce Barkwill v. The Cornelia H. Barkwill Revocable Trust
 No. 64A04-0808-CV-455

This matter involved two brothers, one who lived in Chicago and one who lived in Florida. Their mother, the settlor, lived alone in northwest Indiana.  The Chicago son assisted his mother financially during her life. In March of 2006, the Chicago son visited his mother and found her to be extremely disoriented.  The mother also called her Florida son and “made some rather strange accusations” against the Chicago son and his family.  The Florida son was convinced the mother was either “drugged out” or paranoid and, after speaking with the Chicago son, decided to travel to Indiana to assess the situation personally.

The Florida son’s visit was the first time he had seen in mother in several years. During the visit the mother continued to display unusual behavior including lunging at the Florida son with a steak knife after the two of them had a disagreement about the mother eating on the floor. The mother was eventually seen by her physician who discovered that the mother was obtaining Valium from the internet and was abusing the drug. After the visit with her doctor, the mother would not communicate with the Florida son, did not want to continue the visit and denied needing any help. Eventually the mother resumed treatment with her physician, stopped using Valium and when the Chicago son spoke with his mother in May or June 200, she “seemed to be back to her normal self.”

After these series of events, the mother met with an attorney and conveyed to him, over a series of meetings and a telephone call, that she was displeased with the Florida son during the recent visit and that he had not been attentive to her throughout his life.  The attorney observed that the mother was “competent, had a plan in mind, and had sensible reasons for her plan.”  The mother then executed a trust leaving everything to the Chicago son. The mother died the following year. The Florida son filed a petition to determine interest in a trust and requested that an early trust be reinstated. After a two day bench trial, the trial court held the most recent trust was valid.

On appeal, the Florida son argued that the trial court failed to apply the necessary presumption of undue influence by the Chicago son on the mother. The Court concluded that the trial court appeared to reject application of the presumption of undue influence, but conditionally acknowledged that even if such a presumption applied it would have been overcome. The Court went on to review the facts of the matter and concluded itself that:

Under these circumstances, we conclude that [the Chicago son] was not in a dominant role in the relationship with his mother at the time she changed the trust, and therefore, no presumption of undue influence attaches. Even if [the Chicago son] had been in the dominant role, he rebutted the presumption of undue influence with clear and convincing evidence. The trial court had ample evidence to conclude that [the mother] was competent to alter her estate plan and she was not under [the Chicago son’s] influence in making the alterations.

In reaching this conclusion, the Court noted that the determination of whether the Chicago son “was truly in a dominant position in his relationship with [his mother] was a highly fact-sensitive one” and concluded that the facts in this matter were unlike those in other decisions where it was concluded that adult children were in a dominate position over their ailing parents.

The opinion was handed down on March 11, 2009 and the full text of the opinion can be found here.