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[Absolutely No Maudlin Sympathy, Editing, Spelling, Grammar, Or Legal Advice]
Oh Sister, Where Art Thou?
Is undue influence hard to prove?
My dad is 91 and has advanced dementia. He lives with my sister. She has isolated him from the family. She had my dad change the will 7 months after he moved in with her. The other will named my sister and I as beneficiaries. Their estate is worth approximately $500,000. Is there any way she could be prosecuted?
Is total lack of responsibility for your own well-being hard to prove? Is leaving such a mess that you will explode any chance of stable family relationships hard to prove? No! All you have to do is read this email and there it is, like getting slapped in the face with a dead fish. A big dead fish.
Have you ever heard of the Internet? It’s this thing involving computers. It exists mainly to demonstrate the idiocy of some people through amateur video. I am not making this up. Ask your grandkids. They may not be able to read, but they are experts on this stuff.
On the Internet you can see people who cut down trees, launch boats, and drive cars. Tree cutters are always dropping trees on houses, barns, cars, and other people. Boat people run their boats over waterfalls, into piers, and under the deep blue sea. Car drivers go too fast or too slow or too sideways and provoke multiple collisions. Hilarious! Do you feel sorry for these idiots? Should you?
Letters like these are the equivalent of a tree cutter who dropped a tree on his house, then decided to go fishing, caused multiple crashes on the way, and then hooked Moby Dick, the great white whale. Moby Dick then pushed the boat over a waterfall. Hilarious!
What Is Going On Here: Dad is 91 years old. Dad still has $500,000. How did Dad (and Mom whom I guess is dead already) manage to earn and hang on to $500,000 over 91 years? That’s a real achievement. Very positive. And now it will be very negative because Dad (and Mom?) did the estate planning equivalent of dropping a tree on the house, causing multiple car crashes, and sinking the boat. Sadly, no Internet video.
What Dad Should Have Done: Dad should have sheltered the lifesavings from long-term care costs by using a Protection Trust. Also known as the “Root Cellar” trust or Medicaid divestment trust, Dad could have protected his lifesavings and avoided probate. Instead, he did a will. Which is a one-way ticket to probate. And in this case, family strife. Dad was good enough, smart enough, and gosh darn it, people liked him! Too bad he threw it all away by failing to plan.
Bad Consequences: Sister is now caring for Dad. How well? For how long? At what cost? Proper planning would have allowed Dad to qualify for the Program of All-inclusive Care for the Elderly, also known as PACE. PACE enables thousands of seniors to stay in their homes. Retain their dignity and independence. PACE also provides assisted living and skilled nursing care as necessary. But only as necessary. Now Dad gets whatever Sister chooses to provide. Complete dependence. Not good. And after Dad dies and this mess winds up in probate court, the only ones rejoicing will be the lawyers on both sides. Hilarious!
Here Is The Answer To Your Question: Proving “undue influence” or proving there was no “undue influence” is practically impossible. Begging, pleading, crying, weeping… none of these are undue influence, but have been held to be natural human reactions, strategies, and realities. And if you were not there and the video tape was not rolling (Does video tape still exist? Ask your grandkids.) how can you prove whether or not there was any undue influence? You cannot. And neither can anybody else.
Super Easy, Barely An Inconvenience: The Law needs a solution. Here it is:
- 1. Basic Rule: If Dad changes his will/trust/other legal structure to give greater benefits to Sister over Brother, Brother (the complainer) must prove that Sister (the beneficiary) used undue influence. The “burden of proof” is on Brother.
a. Intelligent Reader: “How can this be? You just said that it is impossible to carry this burden of proof?”
b. Elder Law Reporter: “Now you’re getting it!”
c. Intelligent Reader: “Wha?”
d. Elder Law Reporter: “We can all agree that there is no way to find out what actually happened. There is no video. So, if Brother wants to upset the apple cart, fine. But Brother you have to go ahead and prove the undue influence.”
e. Intelligent Reader: “But Brother cannot prove it. He loses!”
f. Elder Law Reporter: “Now you’re getting it! Whoever wants to fight the will or trust must prove their case. Which is impossible. So, whoever wants to fight, loses.
- 2. Smart Observation: This is a stupid rule! The Law lets bad people get away with evil deeds. Good people cannot do anything about it! This is not smart.
a. Intelligent Reader: “It does seem a bit harsh. Sister isolates Dad. Sister rides roughshod over Dad, forces him to change his will. And now you say there’s nothing to be done. That is not right!”
b. Elder Law Reporter: “True enough. There would never be any protection for Dad from Evil Sister if the Basic Rule was the only rule. So let’s make a modified rule. As follows:
- 3.Modified Rule: If Dad changes his will/trust/other legal structure to give greater benefits to Sister over Brother, AND if Sister is acting as Dad’s fiduciary OR if Dad is dependent on Sister, then Sister must prove that there was NO undue influence.
a. Intelligent Reader: “What the hell are you talking about?”
b. Elder Law Reporter: “We call it ‘shifting the burden of proof.”
c. Intelligent Reader: “That don’t make no sense.”
d. Elder Law Reporter: “I’m with you fellers. But stick with me here for a minute, it is not as crazy as it sounds.”
e. Intelligent Reader: “I’ll decide what’s crazy!”
f. Elder Law Reporter: “Fair enough. Let’s review the bidding:
- i. With undue influence, generally speaking, whoever has the burden of proof loses.
1. If the Complainer must prove undue influence, the Complainer loses.
2. If the Beneficiary must prove that there was NO undue influence, the Beneficiary loses.
- ii. All things being equal, the Complainer must prove his case. If Brother wants to complain and take Dad’s money away from Sister, he has to prove that he has a Righteous Cause.
- iii. But what if things are NOT equal? What if Sister has control over Dad? What if Dad has given Sister legal control over his assets? What if Sister controls every aspect of Dad’s life and Dad is dependent on Sister? Brother cannot even get to see Dad. That’s not fair!”
g. Intelligent Reader: “Get to the punch line!”
h. Elder Law Reporter: “If the Beneficiary is fiduciary to Dad, the Beneficiary must prove that there was NO undue influence. That is the Modified Rule.”
i. Intelligent Reader: “What do you mean ‘fiduciary’?”
j. Elder Law Reporter: “ ‘Fiduciary’ means trustee, agent, personal representative, or a person on whom Dad is dependent and to whom Dad has given special faith and trust.”
k. Intelligent Reader: “Try this on for size:
- i. Faithful, Loving, Dutiful Caregiver Sister provides faithful, loving, dutiful care to Dad for years at no charge;
- ii. Callous, Uncaring, Irresponsible, Disrespectful Brother’s ignores Dad, never visits, refuses to take Dad’s phone calls, and is always hitting the old man up for money;
- iii. Dad is moved by Sister’s Faithful, Loving, Dutiful Care;
- iv. Dad is offended by Brother’s lack of interest and greed;
- v. Dad disinherits Irresponsible Brother and gives all to Dutiful Sister.
- vi. Dad dies and Brother sues Sister for undue influence.
- vii. Are you telling me that Brother wins? That’s even worse!”
l. Elder Law Reporter: “Sister will lose. Unless she is aware of the Law and prepares to meet any allegation of undue influence with overwhelming evidence of the propriety, righteousness, authenticity, and genuineness of Dad’s intent and decision-making. Then Sister wins! In these situations, we prepare for the undue influence challenge with affidavits of facts, establishing why and how Dad made the decisions he did. All signings get four (4) witnesses, preferably attorneys. We try to get statements from Dad’s doctors too. Anything to bolster the case that Dad was large and in charge at the time of changing the will/ trust/other arrangements.
m. Intelligent Reader: “Can I download all of this from the Internet for free?”
n. Elder Law Reporter: “No.”
o. Intelligent Reader: “But this sounds way too expensive! Dad will never go for it, even though I’m sure it is the right thing to do… Gloom, despair, and agony on me!”
p. Elder Law Reporter: “What if you could get all the work done at a 50-66% discount? All the results, but not so much handholding.”
q. Intelligent Reader: “I don’t want you holding my hand anyhow… Tell me more!”
r. Elder Law Reporter: “Read on, below!”
Get All You Need: Estate Planning Is Like Flying
Consider the airlines. Back in the day, few people flew. Go Greyhound! Dress Code was suit and tie. Or a nice dress. Airline travel was for the few, the proud, the wealthy. It was not for you, except at great financial sacrifice. But golly, was it nice!
Today, we like to complain about getting packed in like cattle. The seats are smaller. Everything costs extra. People show up in their pajamas. (And if those aren’t pajamas, I’d like to know what you call ‘em!) Golly, it is just not so nice anymore!
On the other hand, if you want to go to Florida, today you have many choices. Even among the least expensive airlines. Fly to Florida, direct from home, with no connecting flights. Nonstop! $59 round trip! Amazing. The seat doesn’t recline. No free soda. No free peanuts. There are no movies. You pay extra for everything, but you only pay for the things you want.
You can still get dressed up if you want. If you really like being served lunch or dinner at 40,000 feet, sign up (and pay) for first class. Finally, if you are determined to burn through your life savings, why not fly in a private jet? For less than $60,000, I’m told you can fly round trip from Miami to Grand Rapids. If you want to.
Get What You Need At A Price You Can Afford
Something you already know about air travel. It is safe. Super safe. You are safer in the airplane way up high in the sky than when you are driving home from the airport. True fact.
You are as safe with your $59 ticket as you are with a $59,000 private jet. Plus, both options will get you to Orlando to visit the Mouse. And safely back home again. More simple truth.
Schedule, price, amenities… these sorts of decisions are now left to the airlines, and you, to decide. What do you value? Make your decision. That’s the American Way!
Do you suppose more choices at lower rates would inspire more Americans to fly? According to the Bureau of Transportation Statistics (your tax dollars at work) airline travel exploded after deregulation! In 1975, before the airlines were set free to serve you, almost 197 million of your fellow Americans. Within 10 years that number practically doubled, to 363 million air travelers. By 2019, almost 5 times as many Americans enjoyed squeezing into little seats, listening to a safety briefing, and jetting off to their dream destination.
All these choices can be confusing. But do you want to surrender? Do you really want to go back to the old way of doing things? I didn’t think so.
Don’t Pick And Choose… Get Everything Price Reduced By 50-66%
What if you could have it all? Asset Protection. Long- term Care Protection. Full funding of your trust. Access to live counsel. Secure assets for yourself, your spouse, your family. Avoid Probate. Save Taxes. Protect Leftovers for the kids.
If you want the old-fashioned, more expensive one-on- one process… great! We are not giving that up.
On the other hand, if you want all the results, at drastically reduced fees, perhaps you might consider a series of live and video meetings with other folks just like you.
1. In person: The LifePlan™ Workshop – No change; Stick with what works.
2. In person: The Blueprint Design – Together with the other folks from your LifePlan™ Workshop, you complete a confidential workbook with detailed information about yourself and your family. Your hopes and dreams. You commit and pay ½ of the reduced fee.
3. Zoom Meeting: One-on-one Review Meeting with Your Counsel – Freely and confidentially discuss options and make decisions.
4. Email Delivery: Receive and Review Documents. Expert videos step you through each document. Note any questions or concerns you may have to discuss with your Counsel.
5. In person: Signing and Initial Funding Meeting – Transfer assets to your trusts. Payment of the balance of the fee.
6. In person: Follow Through Funding Meetings – Finish the Job!
7. In person/Zoom/Video: Ongoing support and Assistance
8. Cost: One-third to one-half of current fees, plus $119/ month for ongoing funding and other services. Drop at anytime.
Do you want to fly first-class to Florida? Safe, Secure, Comfortable. Some folks do. And they are willing to pay the additional costs.
Do you just want to get to Florida? Safe, Secure, Some Inconvenience. Drastically reduced fee?
Either way, the process is safe and secure. You get every bit of security and asset protection.
As you continue as a member, you can add optional trusts and features. Membership has its privileges.
Get Everything You Need, Everything You Want
You do not have to settle for the disappointing failure of traditional estate planning. You can get the LifePlan™ Advantage at no greater cost to you.
Traditional Trust Planning Is Profoundly Mistaken
Why Do They Bank On Death? Willful Ignorance Or Intentional Scam? Why Not Both?
Traditional estate planning supposedly avoids probate, saves taxes, and safely, efficiently delivers your remaining property and money to your heirs or beneficiaries. After you have passed on. Traditional estate planning is not concerned with you while living, only after death. Nobody cares what happens to you while you are alive. How does that help you?
Traditional estate planning fails because the overwhelming majority of us will need long-term skilled care. 70% of us. For an average of 3 years. And we will go broke paying for it.
Are you surprised that thousands of recreation properties: cottages, cabins, hunting land, are lost to
pay for long-term care? Why is your estate planner surprised? Isn’t that their job? Or is your estate planner in denial?
You can defeat Nursing Home Poverty. LifePlanning™ empowers you. Keep your stuff. Get the care you have already paid for. Good for you. Good for your family. Good example for society.
When my mother suffered from the dementia which led to her death, over 10 years ago, their estate plan preserved their lifesavings. Mom’s months in the nursing home did not mean Dad’s impoverishment. Dad spent the last years with security and peace of mind.
IS NOW A BAD TIME FOR A REAL SOLUTION?
Perhaps you think you already have an answer to this problem. Maybe you do not see this as a problem at all. It is possible that you do not believe in the passage of time or its effects on you.
Peace of mind and financial security are waiting for everyone who practices LifePlanning™. You know that peace only begins with financial security. Are legal documents the most important? Is avoiding probate the best you can do for yourself or your loved ones? Is family about inheritance? Or are these things only significant to support the foundation of your family?
Do you think finding the best care is easy? Do you want to get lost in the overwhelming flood of claims and promises? Or would you like straight answers?
Well, here you are. Now you know. No excuses. Get the information, insight, inspiration. It is your turn. Ignore the message? Invite poverty? Or get the freely offered information. To make wise decisions. For you. For your loved ones.
The LifePlan™ Workshop has been the first step on the path to security and peace for thousands of families. Why not your family?