Fighting Undue Influence in North Carolina
Power. Control. Opportunity. Secrecy. These are the earmarks of the imposition of undue influence in North Carolina. The perpetrators can be family members, caregivers, friends. People who feel they are “owed.” They are often people whose “retirement plans” are the proceeds of another’s life-long hard work.
Every case involving a breached fiduciary relationship may contain elements of undue influence. Estate disputes, trust disputes, guardianship matters, business disputes, power of attorney self-dealing … where there is a fiduciary in place – formally or informally – there exists the potential for abuse.
In the context of undue influence, fiduciary relationships can exist as a matter of law, or they can exist under the circumstances.
We lawyers call the former de jure fiduciary relationships. Those include, among others, lawyer-client, trustee-beneficiary, principal-agent (under powers of attorney, husband-wife, and, at times, parent-child, Estate personal representative (executor/ administrator)-beneficiary.
The latter includes situations where the facts are such that a person relies on the loyalty of another, instances where the “principal” places (reposes) special faith and trust in another.
A classic example is where an elderly parent relies on a child to manage their finances, and the child tragically takes advantage for personal gain.
The common factor is that the influencer induced the victim to act in a way that benefits the influencer or his or her immediate family members. Examples of such instances can include:
Undue Influence is More than Simple Influence
Undue influence is not simply “influence.” It is demonstrated by more than “targeted kindness” or simple suggestion. It is the substitution of the influencer’s desires for the wishes of the influenced. It is a situation where a vulnerable (influenceable) person is taken advantage of by a person who has taken advantage of the vulnerable. The law recognizes many factors that provide evidence of the advantage-taking. Those factors include, among others:
- The vulnerable is a person who exhibits mental fragility; for example, dementia;
- The vulnerable is a person whose physical fragility makes them dependent on others;
- The predatory person lives with the vulnerable person;
- The influenced is under the constant supervision of the influencer;
- The influencer isolates the target from friends and/or family members;
- The resulting change (deed, Will, Trust) is different from the vulnerable person’s past plan of distribution;
- The resulting change favors one for whom there is no blood tie;
- The resulting change disinherits or excludes the “natural objects of one’s bounty (i.e., family members); and
- The influencer induced the change.