Under the Influence
Families, Fraud, and Financial Elder Abuse
Stories about wills and inheritance often include stock figures – the greedy young wife, the manipulative caretaker, or the scheming stepparent. Then, once the cast of characters is set, the drama revolves around lawyers being called in, documents being drafted, wills being amended, and new beneficiaries being added while old ones are written out.
There is a doctrine in inheritance law designed to stop this type of manipulation and coercion: the undue influence doctrine. During the probate process, if there is an allegation that someone influenced the outcome of a person’s will, a family member or heir must show two things. One is that the alleged influencer had either a fiduciary or “reliant” relationship with the person who died, meaning the person who died was reliant on the influencer for things like rides to medical appointments, getting prescriptions or groceries, housekeeping, and even bathing or dressing. Second, the person alleging undue influence must also show that there were “suspicious circumstances,” such as a changed will, gifts to the influencer, or an attempt to isolate the person from their family. If the judge finds “undue” influence did occur, then the influencer is legally barred from inheriting.
The undue influence doctrine has been the subject of critique, because it tends to penalize people like caretakers who get gifts but are not family members. Undue influence can also undermine the autonomy of the person who has died in that gifts made to the influencer will not be honored. Moreover, it’s hard sometimes to know when influence crosses the line and becomes “undue,” particularly when the alleged influencer is a family member or a spouse. The core purpose of the doctrine, however, is something we should all be thinking about: protecting vulnerable people from fraud and financial abuse.
Elder financial abuse is a growing phenomenon. The Elder Fraud Report from the Federal Bureau of Investigation revealed that in 2023, there were 880,000 complaints with losses exceeding $12.5 billion. Complaints from those over the age of 60 topped $3.4 billion and there was a 14% increase from the previous year in complaints from this age group. Tech support fraud was the most common complaint, followed by predatory marriage and cryptocurrency or other investment scams. Those who were targeted “remortgaged/foreclosed homes, emptied retirement accounts, and borrowed from family and friends to cover losses in these scams.” The report authors emphasize that the statistics likely don’t tell the whole story because of underreporting due to embarrassment and shame over being defrauded.
These numbers reveal a deeply disturbing growth in predatory financial schemes that target the vulnerable, including older individuals. What the numbers keep under wraps, however, is the fact that elder financial abuse happens most commonly at the hands of relatives. Easy access drives this kind of financial abuse by family members:
A relative may use check stealing, account withdrawals, or credit card misuse to deplete funds. Family members in caregiving roles may also feel entitled to payment for their efforts, appropriating money without permission. Similarly, relatives granted power of attorney may abuse their authority by making transactions that only benefit themselves. From outrageously high “gifts” to transferring property deeds, their inside access enables exploitation. [link]
And in family situations, “who suspects the daughter cooking Sunday dinners of credit card theft?”
Looking for solutions, some states are using the concept of undue influence to target financial elder abuse, making it so that abusers cannot inherit. The problem is that, while the influencer may face consequences during the inheritance process, the person who was defrauded never recovers the money while they are alive. The better path, then, may be focusing on preventing financial elder abuse and fraud before it happens, both within and outside of the family.
