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POA has destoyed/hidden will & transferred $500K to her account

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  • Zos
    replied
    Re: POA has destroyed/hidden will & transferred $500K to her account

    Anyone familiar with tort law?

    I found that Iowa courts have recognized a claim based on interference with inheritance. Tortious Interference With Expectancy of Inheritance: Huffey v. Lea, 491 N.W.2d 518 (Iowa 1992); Frohwein v. Haesemeyer, 264 N.W.2d 792 (Iowa 1978).

    "The usual case is that in which the third person has been induced to make or not to make a bequest or a gift by fraud, duress, defamation or tortuous abuse of a fiduciary duty, or has forged, altered or suppressed a will or a document making a gift."

    The most common basis involving wrongful interference is undue influence. The Restatement (Third) of Property summarizes the concept thus: “The doctrine of undue influence protects against overreaching by a wrongdoer seeking to take unfair advantage of a donor who is susceptible to such wrongdoing on account of the donor’s age, inexperience, dependence, physical or mental weakness, or other factor. A donative transfer is procured by undue influence if the influence exerted over the donor overcame the donor’s free will and caused the donor to make a donative transfer that the donor would not otherwise have made.”

    Undue influence involves “excessive and unfair persuasion, sufficient to overcome the free will of the transferor, between parties who occupy either a confidential relation or a relation of dominance on one side and subservience on the other.” The concept is meant to capture forms of mistreatment that are less overtly coercive than fraud or force or threat of force. Rather, it refers to “overreaching” and “overpersuasion.” In the inheritance context, undue influence commonly takes the form of a caretaker who ingratiates himself to an elderly and infirm donor, while at the same time isolating the donor from friends, family members, and physicians, after which the donor, at the suggestion of the caretaker, arranges to transfer property to the caretaker.

    Inferences, Presumptions, and Burden Shifting. To impose structure on the unruly undue influence concept, courts have developed an elaborate scheme of inferences, presumptions, and burden shifting. For example, although the contestant normally has the burden of proving that a will was procured by undue influence, the prevailing rule is that the trier-of-fact can infer undue influence from circumstantial evidence showing that “(1) the donor was susceptible to undue influence, (2) the alleged wrongdoer had an opportunity to exert undue influence, (3) the alleged wrongdoer had a disposition to exert undue influence, and (4) there was a result appearing to be the effect of the undue influence.”

    This rule of inference brings order to the question of what circumstantial evidence is relevant and therefore admissible. Moreover, in most jurisdictions the contestant is entitled to a presumption of undue influence if the contestant shows the existence of a confidential relationship between the alleged influencer and the testator plus at least one other suspicious circumstance. The term “confidential relationship” encompasses traditional fiduciary relationships, such as a lawyer and client, as well as other relationships that are “based on special trust and confidence” justifying the donor in “placing confidence in the belief that the alleged wrongdoer would act in the interest of the donor.” For example, a confidential relationship may be found between a caregiver and an enfeebled patient or an adult child and an enfeebled parent.

    Suspicious circumstances include a will executed while the donor was in a weakened physical or mental state; the absence of an independent lawyer representing the donor’s interests; the making of the will “in secrecy or in haste”; and the making of a will that is a substantial departure from the donor’s prior, longstanding estate plan. An especially powerful suspicious circumstance, which may give rise to an enhanced presumption of undue influence, is if “the disposition of the property is such that a reasonable person would regard it as unnatural, unjust, or unfair, for example, whether the disposition abruptly and without apparent reason disinherited a faithful and deserving family member.”

    When a presumption of undue influence is triggered, the burden shifts to the proponent to come forward with rebuttal evidence??"for example, by showing that the presumed influencer “acted in good faith throughout the transaction and the grantor acted freely, intelligently, and voluntarily.”

    In the absence of such rebuttal evidence, the contestant is entitled to judgment as a matter of law. The theory is that a person who benefits from a confidential relationship “can take precautions to ensure that proof exists that the transaction was fair and that his principal was fully informed, and he is in the best position after the transaction to explain and justify it.”

    The remedies available to a plaintiff in a successful action include a constructive trust, equitable lien, or monetary judgments. The monetary judgment against a defendant may include consequential loss damages, emotional-distress damages, punitive damages, and attorney’s fees. Furthermore, for alleged wrongful lifetime transfers induced by the defendant, courts of equity have the ability to set those transfers aside.

    Leave a comment:


  • Zos
    replied
    Re: POA has destoyed/hidden will & transferred $500K to her account

    Thanks much for your quick reply AFF.

    Any ideas on how to find the attorney who drafted their will? I had mentioned below about looking at old real estate transactions or if their financial advisor might have record of their attorney.

    I read that Iowa courts will only accept an original will: "A copy cannot be entered into probate, as it is assumed that if the original cannot be found then the original was purposely destroyed by the testator." Would we be able to argue that my mother has had control of all her paperwork since my uncle died 15 years ago and that's why it is missing?

    While we continue to try to find the will, what else we can do? Do we send her a "Demand To Produce Copy of Will"? Demand an accounting of the last 15 years and hit her with breach of fiduciary duty?

    No probate has been done. I can't even find record of the newspaper notice that was supposed to be posted for creditors.

    Leave a comment:


  • AFFA
    replied
    Re: POA has destoyed/hidden will & transferred $500K to her account

    I wish to inform you that you and your brother can have assets if you can show that a will was created. In this regard you can check the details as to how assets have been transferred. In case of death the persons asset are transferred only after there has been probate procedure in court. If probate has been done then the documents involved in transfer can be known from court. You can then find any wrong documents submitted for transfer and then necessary action can be started, You can go to court and know details of probate. If no probate is done then you can start legal proceedings to recover amount taken wrongfully.

    AFF

    Leave a comment:


  • POA has destoyed/hidden will & transferred $500K to her account

    My mother's sister passed away in November in Iowa. My uncle passed in'97. They had no children and my two brothers and I were their only relatives besides my mother. My aunt was legally blind and my mother had power of attorney after my uncle passed.

    My mother played the grieving sister for the last two months and said she couldn't deal with the "paperwork" because of it. But as of two days ago, she told my brothers and I that everything belongs to her and says there was no will. My aunt and uncle we're totally organized and had everything in order. A number of years ago, I saw a copy of their will in my mother's office - they left their entire estate to my brothers and I. It was common knowledge - talked about many times over the years. My aunt had brought it up while she was in the hospital a month before she passed away.

    My brother did a little sleuthing tonight and found paperwork showing my mother had her assets (over $500,000 in stocks and bank accounts) transferred to her name just days after my aunt's death. We're sure there's more than that but that's all we could find at this point. She also took all of my aunts possessions from her apartment - countless antiques of significant value. Offered me an aluminum salad bowl. Thanks but no thanks Mom.

    Sad to say but my mother is a really nasty woman. We've always known she's greedy and has no conscience but my brothers and I are in a state of shock. My aunt was old fashioned and always had envelopes full of $100 bills. We knew she'd steal the cash from her apartment (my brother saw the bank envelopes with my aunt's scribble notes in my mother's desk drawer - $22,000 in cash - took pictures) but had no idea she'd commit a crime as big as destroying/hiding the will. Could she go to jail for this??? Not what we're after - just want her to come clean with us.

    Do we have any recourse at all without copies of the will(s)? I checked with the county in Illinois where my uncle passed away and no will was ever filed with the court .Imagine that - guess she's been planning this for 15 years. I've started calling law firms in the city they lived but have yet to find their attorney. I'm wondering if looking at old real estate transactions from the '80's might turn up a name of a law firm or if the financial advisor they had for 30+ years at Smith Barney might have record of their attorney. Nervous about contacting him b/c my mother has a relationship with him b/c of POA status. Do we send her a "Demand To Produce Copy of Will"?
    Demand an accounting of the last 15 years and hit her with breach of fiduciary duty?

    My mother is wealthy and knows every attorney in our home town. We're really afraid she's going to get away with this. My brother and I love my father and don't think he's involved but when this hits the fan, we will lose our relationship with him. Guess we're looking for someone to tell us we have a leg to stand on and it's worth pursuing.

    Thanks in advance for any assistance.
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