A question for you: do you have an estate plan? Of course you do, everyone needs an estate plan.
Second question: who is(are) the beneficiary(ies) of your estate plan? Someone you love and trust, I presume. Perhaps a spouse, or your children, or maybe even a worthy charity.
Follow-up questions: if your beneficiary is not a spouse, child, or charity, is it instead your son’s much younger former girlfriend that has been spending a suspicious amount of time around you lately? And does she have a severe gambling problem, to the point where she can’t remember how much she’s lost at the track, but remembers things well enough to testify “I love gambling” in open court? And does she have a lapsed attorney son that also has a gambling problem, but has somehow managed to purchase a BMW, a Corvette, and 12 racehorses for himself? And finally, is $1.8 million missing from your bank account?
If you answered no to all of these questions, then good for you. You are an intelligent and sensible person who would never fall for a scam artist seeking to ingratiate themselves into your testamentary planning.
But here’s some more questions: can you say the same for your father? How about your mother? Or your grandparents? Or the elderly uncle for whom you are the last living blood relative?
And one last question: are you sure?
I ask this last question because the son of the decedent at the heart of the Court of Appeal’s decision in Dowling v. Uriostegui (WARNING! UNPUBLISHED! DO NOT CITE THIS CASE IN COURT! THE JUDGE WILL GET MAD AT YOU AND YOU’LL BLAME ME AND THEN NONE OF US WILL BE HAPPY) thought he knew the answer to these questions, and he was wrong. Unbeknownst to him, his father fell victim to a schemer with a plan to “befriend elderly, ailing individuals, alienate them from their family, and exert undue influence to get them to sign new estate planning documents that disinherited their families and left their assets to her.” And that’s where the gambling, the Corvette, the 12 racehorses, the missing $1.8 million, etc., came into play.
(SIDENOTE: I promise that I am not making any of this up. I am also not making up the part where the scam artist’s lawyer son posted photos of himself on social media with his ill-gotten Corvette and racehorses alongside captions like “#money motivation for my C students at Southwestern Law” and “Don’t let the Profs get you down. I was in your shoes before, but look at what I drive today.” And I am definitely not making up the names of the scammer’s son’s 12 racehorses, which were, in no particular order, “Mudge, Templar, American Rhiannon, Sooner Time, Dahlia Azul, Street Moxie, Black Street Cat, Matty’s Tribal, Zarqa Star, Voluntary, Empire Ruler, and Ree O Kerr.”)
Testamentary fraud is not a new phenomenon – it’s at least old enough to be recorded in the Old Testament. But as financial elder abuse becomes more widespread and technologically savvy, there’s more need than ever to be cognizant of the harm that one scammer can pose to estate plan. While there are steps that can be taken after your relative’s passing to keep the scammer from enjoying the fruits of their malevolent labors (for example, a suit to set aside a will or trust for undue influence), any trust and estate litigator will tell you that this can be an uphill climb. It’s far easier and more effective to take steps to protect your elderly relatives from being victimized while they are still alive. To that end, I offer the following suggestions:
- Regular Communication – I get it: you are a very busy person with many important things to do. But regular visits (or, if in-person visits aren’t practical, regular phone/video calls), in addition to making your mother/father/grandparents/elderly uncle very happy, are the most effective tool you have to protect your relatives against scams, testamentary or otherwise. The more you speak with your relatives, the more likely they are to mention their special new friends, or their visits to an attorney to “sign some documents,” or their suddenly missing checkbooks. More importantly, regular communications strengthen relationships and build trust – like in the Dowling case, many scammers try to alienate their victims from family by telling them lies about the ways their family is supposedly mistreating them. Staying in regular communication helps your elderly relative to trust you, not the scammer.
- Encourage Them to Share Copies of Their Estate Plan – My office gets semi-frequent calls from panicked individuals who have just lost relatives and are unable to find their estate planning documents. “I know she made a will, but we can’t find it anywhere!” is a pretty common refrain. On these occasions, it is my sad duty to inform the caller that there is no national will and trust registry. “Did your relative have a safe deposit box?” is usually the best I’ve got. So, when I suggest that you encourage your relative to share copies of their estate planning documents with their beneficiaries while they are still alive, it’s not just because it will give you a chance to give the plan a quick review for suspicious terms – it’s also to save both of us the trouble of an embarrassing and unhelpful phone call.
- Encourage Them to Get Regular Medical Check-Ups – In addition to assessment of their physical well-being, medical check-ups for your elderly relatives will typically include at least a rough evaluation of their cognition. Though a primary care physician’s cognitive testing is not on the level of the testing provided by a qualified neuropsychologist, it should still be enough to give your relative a heads-up as to the beginnings of any decline in their cognitive abilities. And, because they trust you and speak regularly with you (see above!), your relative may pass that heads-up along to you. Staying aware of your relative’s mental state will help you know when they are becoming more vulnerable to scammers and may also help you to know when some more proactive assistance may be necessary, such as a power of attorney, or even a conservatorship.
The preceding suggestions are not meant to be exhaustive, but they can give you a head start to avert potential scams before post-mortem litigation is the only means you have to get your relative’s estate plan back in order.
“But wait,” you say. “Aren’t you a trust and estate litigator? And by providing these helpful tips to avoid litigation, free of charge, aren’t you putting yourself out of a job?”
Don’t you worry about me. My racehorses and I will be just fine.
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