Undue Influence Can Occur When Principal is Lucid

The decedent had four children and gave one daughter a power of attorney and established a joint checking account with another the daughter.  Two other children alleged that the decedent’s funds had been misappropriated and two daughters had received almost $300,000 combined. A forensic CPA was not able to determine if the transfers were appropriate or reasonable.   On an action for the removal of the personal representative, the trial court determined that there could not be any undue influence if the principal is lucid.  On appeal, the court reversed.  The court stated that, under state (ND) law, the trial court was to determine whether the two daughters assumed a confidential relationship with the decedent and, if so, a presumption of undue influence would apply as to any and all benefits the daughters obtained on account of that relationship.  In re Estate of Bartelson, No. 20140244, 2015 N.E. LEXIS 157 (N.D. Sup. Ct. Jun. 11, 2015).

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