by Laura A. Dzielski (Winter 2016)

It’s Monday morning. Before rushing off to work, you are getting the kids ready for school – preparing lunches, reviewing spelling words, signing permission slips, coordinating car pool for soccer practice – and the phone rings. It’s your sister. You haven’t heard from her in years since you moved to Arizona. “Dad passed away” she says. You knew this was eventually going to happen; he had been fighting cancer for almost two years now. You wanted to be around more to help, but since moving out of state, it was almost impossible to coordinate schedules between work, your wife, the kids… You feel guilty. Your sister has been there every step of the way – scheduling doctor appointments, preparing meals and driving him wherever he needed to go. You could’ve done more, right?
 
You fly out to Illinois to see your entire family for the funeral. Of course, your sister has everything taken care of – the church, the flowers, the burial, the plot right next to Mom – and administering the estate. You were the big brother, but ever since the move, your sister has taken the lead on family affairs, so you weren’t too surprised to find out that she was also named executor.

However, what you didn’t expect was that your sister was taking 100% of the estate pursuant to your father’s Last Will and Testament. You know deep down you could have been there more, but you always had a close relationship with your dad. Something seems off. Are you just feeling remorseful, or is there really something unseemly going on?
 
Situations like this are all too common. A sibling, a grandchild, or cousin is able to be around more than any other family member, so that sibling, grandchild or cousin takes on the role of “caregiver.” Does this always mean that there is something suspect in the preparation of a loved-one’s estate plan? No. But there are times when everything just doesn’t add up.

According to the Illinois Department on Aging, it is estimated that over 76,000 citizens in Illinois, may be elder abuse victims. There are 8,000 cases of alleged abuse reported to Adult Protective Services annually, and according to state data, over half of these reports made in Illinois allege financial exploitation. While this could happen to anyone, not just the elderly, it is most commonly reported that vulnerability occurs beginning at age 65.
 
Recently, a new law was enacted under the Illinois Probate Act entitled “Presumptively Void Transfers.” P.A. 98-1093 (eff. Jan. 1, 2015) (adding 755 ILCS 5/4a et seq.). The intent of the law is to restrict unrelated caregivers, who may abuse their positions, from receiving testamentary gifts by declaring such gifts presumptively void. The statute provides that if in any civil action a “transfer instrument” (a will, trust, deed, contracts, etc.) is challenged, there is a rebuttable presumption that the transfer instrument is void if the transferee is a “caregiver” and the transferred property exceeds $20,000.

But what if the “caregiver” is a family member like in the scenario above? Family members are specifically excluded from the definition of a “caregiver.” So, what can you do if you suspect wrongdoing by a family member?
 
What constitutes undue influence depends on the circumstances of each case, and proof may be wholly circumstantial. Golly v. Eastman (In re Estate of DiMatteo), 2013 IL App (1st) 122948, ¶ 62. Such circumstance exists where: “(1) a fiduciary relationship exists between the testator and a person who receives a substantial benefit from the will; (2) a testator who was in a dependent situation where the beneficiary was in a dominant role; (3) a testator who placed his trust and confidence in the beneficiary; and (4) a will that was prepared or executed in circumstances where the beneficiary was instrumental or participated.” In re Estate of DiMatteo, 2013 IL App (1st) 122948.

Many factors come into play when assessing the circumstances that may have led to a family member’s undue influence. In the example above, the disinherited son should ask several questions: Was the sister involved with procuring the will? Did she hire the attorney who drafted the will? Did she drive Dad to all his appointments with the attorney? Did she sit in on meetings with the attorney when the will was drafted and signed? How about the relationship that Dad and sister had – was there a fiduciary relationship? Did sister manage Dad’s daily financial affairs? Did Dad depend on sister? Without sister, did Dad have any way of taking care of himself? Were sister and Dad in a situation where Dad had put his utmost trust and confidence in sister?
 
If you suspect wrongdoing, or are accused of wrongdoing, in the procurement of a loved one’s estate plan, these are some of the questions that must be asked. In either case, you need to speak with an attorney.