The AARP reports roughly 3.5 percent of all older adults suffer some form of financial exploitation (actual numbers likely higher as not all cases are reported) costing more than $2 billion annually. (The Elder Financial Protection Network puts it at closer to 10 percent.)

It’s worth consulting with a probate attorney, even if you don’t plan on hiring one. It’s essential because your time to legally act and contest a will is very brief, so it’s best to preserve your challenge to a will early on if there is any chance you might do so. In the case of elder financial exploitation prior to death, your attorney will most likely assert some form of undue influence as grounds for contesting a will.

What is Elder Financial Exploitation?

The Older Americans Act of 1965 defines exploitation of an elder as:

“The fraudulent or otherwise illegal, unauthorized, or improper act or process of an individual, including a caregiver or fiduciary, that uses the resources of an older individual for monetary or personal benefit, profit or gain, or that results in depriving an older individual of rightful access to, or use of, benefits, resources, belongings, or assets.”

Key risk factors include:

• Dementia
• Low social support
• Functional impairment
• Bereavement
• Living with a large number of family members without spouse
• Low income/poverty
• Being female

A 2014 study published in the Journal of General Internal Medicine revealed that in a study of nearly 4,200 adults who had suffered financial exploitation, family members were the most common perpetrators (58 percent), followed by friends and neighbors (17 percent) and home care aides (15 percent).

Any time a family member becomes secretive about a parent’s finances or the family member living with a parent depends on him/her for financial support, these can be red flags. A sibling or caregiver who insists on being present for any interaction with the elder is another. A sudden change in any estate planning document should set off alarm bells.

Adult protective services should be contacted if the financial exploitation is currently ongoing.

If your loved one has already passed, you must act as quickly as possible to preserve your right to a challenge asserting undue influence.

Undue Influence After Financial Exploitation

As a Fort Lauderdale probate litigation attorney can explain, contesting a will of a recently-deceased parent or other loved one requires swift action.

Undue influence is defined as when someone close to the elder person pressures or manipulates that person in a way that has legal significance. It’s basically a type of fraud that occurs when someone is either entering a contract or drafting a will.

Understand can generally happen to any adult – even one who has the capacity to make decisions – can be a victim of under influence. However, as previously mentioned, certain situations can increase the likelihood that one will be vulnerable to it.

F.S. 733.107 explains the burden of proof in will contests and the presumption of undue influence under certain circumstances. These include the beneficiary being present when the elder person expressed a desire to make the will, recommending an attorney to draft the will, knowledge of the will’s contents prior to it being executed, giving instructions on preparing the will, securing witnesses for will and being the one to hold the will in safekeeping.

Contact our probate litigation law office in Fort Lauderdale if you are concerned your loved one may have been exploited in the creation of their will or certain benefits meted out therein.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

TWELVE WAYS OF PROVING THE NEGATIVE AND OVERCOMING THE CARPENTER PRESUMPTION OF UNDUE INFLUENCE, Feb. 12, 2019, Florida Bar Journal

More Blog Entries:

Estate Lawyer Answers: Can Adult Children be Disinherited in Florida? April 27, 2019, Fort Lauderdale Probate Litigation Attorney Blog

Equitable strives for equal, but in the case of some breach of trust cases, our Fort Lauderdale probate litigation attorneys have seen this mean as little as 6 months… Or it could mean you have as many as 40 years.

In the case of undue influence, however (which is the most common grounds for a Florida will contest), your limitations period again is usually four years. At most, however, it can be up to 12 years. This is thanks to something called the “delayed discovery doctrine.”more Delayed Discovery Doctrine in Florida Probate Litigation

If a person’s knowledge of a wrongdoing (or the point at which one reasonably could have known about it) occurs after the statute of limitations has run out, F.S. 95.031(2)(a) holds that a cause of action (in this example, grounds for a Florida probate litigation lawsuit) could be delayed beyond the four-year statute of limitations that might normally be the deadline in an undue influence case.

Delayed discovery typically must be proven by showing that there was some type of fraud or concealment that prevented the person from knowing about the undue influence – or even possibly discovering it. Nonetheless in no case can you bring a case for undue influence by asserting fraud past 12 years from the alleged commission of that fraud – even if it couldn’t have been discovered before that.

The delayed discovery doctrine is applied usually only as the exception to the rule. For the most part, this statute refers only to claims of product liability. However, there was a case of alleged undue before Florida’s Second District Court of Appeal two years ago that asked whether one might apply the delayed discovery doctrine.

Delayed Discovery and Florida Undue Influence Lawsuit

In the 2017 case, the issue involved a philanthropic irrevocable trust. As a Fort Lauderdale undue influence probate attorney can explain, a revocable trust can’t be litigated until it becomes irrevocable. This usually happens when the settlor dies. In this case, however, the trust in question was always an irrevocable trust, meaning it was subject to challenge from the day of its inception, which would have been in 2005.

However, it wasn’t until 10 years after its inception, after the wife’s 2015 death, that the pair’s daughter sought to challenge the validity of that trust (which named the couple’s long-time doctor and attorney/accountant as trustees).

Most everyone involved agreed that the statute of limitations that applied was four years.

BUT… That is absent the assertion of the delayed discovery doctrine, which is what claimant alleged. This would have extended the filing deadline on the undue influence claim from four years (time-barring the claim as of 2009) to 12 years (through 2017). But as noted in Florida statute, this 12-year statute of limitations would only apply in the case of fraud.The trial court judge ruled undue influence cases are not founded upon fraud. However, this ruling was reversed by the 2nd District Court of Appeals.

In its reversal, the appellate panel sided with plaintiff in finding that undue influence is a type of fraud. The trustees in the case argue that fraud and undue influence have distinct elements and are not the same (and thus not subject to the delayed discovery doctrine). Justices found that while undue influence and fraud are indeed separate and distinct causes of action, but that undue influence basically asserts a type of fraud, assuming the facts of the case meet the elements necessary to prove fraud.

That didn’t mean plaintiff won her case, however. (In fact, she later lost.) But it did firmly establish that claims of undue influence asserting fraud can be subject to the longer 12-year statute of limitations.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Flanzer v. Kaplan, Nov. 29, 2017, Florida Second District Court of Appeal

More Blog Entries:

Florida Probate Dispute: Prenuptial Agreement Enforcement After Spouse Dies, Dec. 15, 2019, Fort Lauderdale Undue Influence Probate Litigation Attorney Blog