1. Location of Siblings. It is often the case that one sibling provides care and support for an aging parent, while other siblings are distant (either physically or psychologically). While the local sibling provides support, that same sibling may also control the parent’s finances. The same sibling may also bring the parent to an attorney to get his affairs in order.
Quite often, the parent is genuinely grateful to the child that is nearby and wants to show it through his planning. Other times, the sibling who is nearby begins to transfer the assets to himself during the parents’ life because he feels entitled. In both cases, after the parent’s death, siblings often litigate the issue of ‘undue influence’.
2. Second (or Third, or Fourth) Spouses. Unscrupulous individuals often seek relationships with elderly persons, in order to further their own financial gain. This was, most likely, the case with Anna Nicole Smith and J. Howard Marshall. However, even when there are no millions of dollars involved, elderly individuals are targeted for their homes, their pensions and their lifelong savings. In New York, a surviving spouse is entitled to at least one third of the estate, and the amount may be more, if the elderly spouse was convinced to change beneficiary designations on his accounts.
After a person’s death, adult children or other people who stood to inherit begin to dispute the late-in-life spouse. The spouse, of course, claims love. The children claim undue influence. The lawyers profit.
3. Blended families. Well-intentioned spouses who do not want to overcomplicate things often have ‘simple’ Wills: everything to the spouse, and after the second spouse’s death, everything to the children. This type of planning may work out well, but quite often it does not.
The situation where it most often does not work out is when there are children from prior marriages. Spouses may believe each other when they promise each other that everything will be split equally. However, the surviving spouse may not continue the relationship with the step-children and may decide later to leave everything to her own biological family. Or even when the children were common, the surviving spouse may remarry, have new children and decide to leave everything to a new family.
4. Trusted caregivers. Often an elderly person is forced to rely on a hired caregiver for all of her daily needs. In such a case, the person’s family may find itself disinherited in favor of the caregiver. Of course, the family will claim undue influence and try to overturn the estate plan.
Yet, these cases turn on the facts. I have seen situations where the hired aide was a truly wonderful individual, who genuinely cared about the person whom she took care of for many years. Why wouldn’t the person want to leave her all the money when his family basically ignored him? On the other hand, I have also seen cases where the caregiver truly isolated an individual and convinced a person to change her estate plan when the woman was clearly incapacitated.