Undue Influence and Professional Conflicts-of-Interest: Key Matters in Kootenai County, Idaho Probate Court Elder Exploitation Cases.

Part I: Ageism, Sexism and Disablism Document Schemes Run Rampant In Probate Courts; Disabled Elderly Women Most at Risk. Part I | Part II | Part III

Kootenai county the emerald-forest and sapphire-lake crowning the Gem State. Centered in the Idaho Panhandle is Coeur d’alene. Heart of An Awl; the lake city and according to an April 2021 Wall street Journal article America’s hottest housing market. Florida of the north for seniors, some might say and just like Florida, and many other areas, the northwest region may be developing a revealing reputation of long-entrenched professional cronyism or conflicts-of-interest in the county probate court among certain groups concerned with vulnerable person matters, civil rights and recent unconstitutional healthcare rationing policies.

Characteristic of many probate courts, which rule on estate transfers as well as guardianship and conservatatorship matters, litigation is consistently corrupted by conflicts of interest among the court officers and those providing 3rd-party support for the court’s preferential attorneys. Such practices define why elder law matters are often referred to as a racket; the epicenter spawning the exponential growth of elder abuse & exploitation.

Many news articles help confirm the bold assertion, that among certain service providers managing elder needs, ranging from social services, financial management, health support and those individuals or firms teamed with estate planners and for-profit conservators in the various judicial district’s probate courts, that conflicts-of-interest have become standardized in practice.

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 Undue Influence an Insidious Form of Elder Abuse

Conflicts of interest matters become particularly concerning when the nexus is between those in elder law professions, guardianship & conservatorships and mandatory reporters in medical fields. In this article topical regional news articles are presented as a fore-warning to what could await the unfortunate, naive elder residents and re-locators when they find their health and memory failing. The fact is some of Idaho’s, like many other states, professionals practices thrive off of the elderly and are counting on the financial opportunities brought forth by both the local aging community and the nations migrating vulnerable seniors. Particularly the wealthy ones and they and their networks are prepared.

Like Florida, Nevada, California, Connecticut, Ohio, Arizona, New Mexico and pretty much every US state, local elder law professionals have a tried and true playbook for elder wealth extraction; or what they innocuously term wealth transfer; voluntary or in the case of the vulnerable, dependent & memory impaired; involuntary.

One of the most common and effective wealth extraction tool is the elder law professional’s team approach.  This requires getting at least one insatiably greedy family member or acquaintance in control of the senior’s health and estate documents. Once that is achieved the finish line is nearly crossed because the pro’s meticulously perfected undue influence tactics, fraudulent calumny and the “team’s” procedural playbook have proven time-and-time again a guaranteed lottery to millions. They know the system is rigged because they rigged it. Police and Prosecutors view these matters as civil, out of their purview.

The insidious tactics initially commence with a family or friend of the seniors becoming the Power of Attorney (PoA) and ideally healthcare proxy too. These documents can be modified to place the predator to be the default Guardian and Conservator as well. You just have the new estate planning attorney add a couple more provisions to the PoAs. And while your at it and another limited financial PoA for the new estate planning attorney. A senior can never give away too much control of their authority over their health and estate, as the suited wolves would convince the elder to believe, just as long as that control they are transferring is going to them. Such transferring of authority is particularly dangerous when the PoA is also the live in or contracted home-care provider.

An “on the surface kind & concerned” acquaintance or family member that controls the elders living circumstances and life’s necessities; shelter, food & water supply, alcohol use and its mix with prescription medications, medical transportation needs, phone & visitation access/non-access to other family or friends, coordination for the development of urgent estate drafting and the elders signing of new estate documents that coincidentally name the seniors care-provider the new Power of Attorney, new deed holder on property, joint bank account holder, full beneficiary on life insurance and annuities; in essence the new proprietor of the vulnerable elder’s entire estate and primary, if not sole beneficiary of the seniors assets, in exchange for their devout selfless care for the senior. The exchange for care loophole is the crux that allow’s the attorney to justify there was a contract-type exchange for the theft of assets.

To avoid prison and guarantee success the “benevolent” care-provider must accomplished the self-directed illicit estate transfers with an Idaho state-bar licensed attorney, and ideally a Living Trust to make the transfers quicker just in case the elder doesn’t pass in the short term. The estate planner already knows the probate courts will allow the transfers no matter the circumstance and even fight on behalf of the scriveners “ruling documents” legitimacy despite the elder being in a hostage like, siege mentality environment; aka Stockholm Syndrome akin to a cult dominated by undue influence over-lords wielding consistent coercion by the individually or by the “team”; family care provider and estate-fee professionals looking out for what they determine are the elders “best interests” and their new wishes that are oddly contrary to the seniors long-established desires.

The Coeur d’elene Press article of July 19, 2019: Elder Abuse: A Big Ugly Secret, provides an insight to an isolated seniors life at home under a domineering home-care provider and why Adult Protective Services are essentially unable to assist.

“Most elder abuse occurs at home, most victims are women, and most abusers are family members. The abuser is rarely a stranger, but more likely a spouse, son, daughter, grandchild, other family member or care giver, and usually someone the elder knows, trusts and depends on. Why don’t the abused victims tell? Many victims won’t admit to being abused because it could get a loved one in trouble or end an important relationship. If an abuser is found guilty, what happens to the vulnerable elder? Some victims may feel shame and even blame themselves. They may be afraid of not being believed and of retaliation from the abuser. Some victims with dementia may not be able to speak out or understand what’s happening.”

“You might think that the effects of physical abuse would be obvious, but a twisted arm may leave no mark or a purple bruise can be hidden under clothing.  How do the abusers hide from discovery? They might always be in the room when someone visits, or have signals that warn the victims of consequences if they tell. The caregiver may refuse to allow visitors, or cut off or monitor all outside contact.”

Adult protective Services inability to provide assistance in these types of circumstances essentially green-lights the abuse, exploitation and negligence, which is particularly dangerous in Counties where Prosecutors and Law Enforcement refuse to take action, because they deem the matters civil offences. The predators are aware of this and take full advantage; they know they are untouchable.

Once a dependent senior has capitulated to any demand of the care-provider, PoA, trustee, landlord, attorney, the elders new doctor or other confidential relationship, and this may only take a week or two to break ones will to forced subservience to another, the amount of control exercised over the dependent vulnerable senior is shocking. Like cult members the seniors turn on long-trusted family and friends to roboticly acquiescence to whatever the dominating care-provider demands. This is execution of undue influence at’s finest; the insidious psychological breaking of an asset rich dependent senior allows the power mad, psychopathic predator the means to accomplish any desire including long festering dreams of sibling revenge. The assisting attorneys and their infallible; bestowed under the authority of God himself, estate documents supposedly make all the fraud in procurement legal. The ends justify the means, regardless of the means. These events occur far more often than one would think, particularly in rogue probate jurisdictions where undue influence is a myth, fabricated by disgruntled family, so called experts and evidence to the contrary is intentionally suppressed. irrelevant or false.

The National Center on Law and Elder Rights (NCLER) addresses Psychologist Margaret Singer research in their June 2017 Issue Brief. Elder Abuse; The Impact of Undue Influence.

“Psychologist Margaret Singer was one of the first researchers to connect elder abuse to undue influence, which she defined as “(w)hen people use their role and power to exploit the trust, dependency, and fear of others. They use this power to deceptively gain control over the decision making of the second person. The psychological tactics of undue influence have been likened to tactics used by cults, ….”

How is any of this relevant to Kootenai County Probate Court and other Idaho cases involving elder exploitation? In the past to the present day there has been repeating patterns of expensive long-litigated cases involving elderly senior women with memory impairments and attorney stoked in-fighting among their family members. Sibling’s disgruntled because other sibling destroyed their relationship with their parents, were responsible for their loved ones rapid health decline and used coerced fraud written documents to steal their parents assets for themselves. Events happening all over the USA and other countries, because this is the nature of modern day probate in lawless, incompetent or abetting jurisdictions further exasperated living trust scams, document fraud , networked toxic conservators and state bar licensed professional orchestrating the theft of elderly women’s and on occasion men’s estates long before the senior even passes.

One case included the nations foremost undue influence expert, Park Dietz associate and his verifiable testimony. Undue influence is an insidious form of elder abuse and includes multiple layers of poly-victimizattion to gain total control of a person. i Since the probate court also green-lighted the undue influence the untouchable legal teams and their crony-aligned officers of the court realize there is no stopping them. They are the law and undue influence is a mere myth in Idaho. Not surprisingly these were also multi-million dollar estate that were essentially being looted and justifiable sibling rivalry in North Idaho is a sure path to disinheritance when the family predator is the PoA, care-provider newly networked with the “untouchable team” of state bar licensed professionals, members of influential civic groups and connected to those with firm-rooted positions on municipal court benches. The well-oiled, senior’s estate cash-infused, machine knows the undue influence playbook by heart, no rehearsing required because they have done this many times before. However, The articles below demonstrate the inconsistency among the more lawful vs the lawless Probate Courts in Idaho, These examples also contrast the influential power of the particular attorney and the support of the various professionals orchestrating the seniors transfers in the different regional jurisdictions.

Repeating Patterns and Contrast in Legal Interpretations in Different Counties In the Same “Uniform Code” State.

Some Idaho counties prosecute attorney-assisted undue influence while other counties do not. With an understanding of the aforementioned you can read between the lines in the starkly contrasting judgments described in the articles below. The first article occurred in south Idaho, and justice was served, the latter two in Kootenai County’s municipal court; the land of the well-connected, untouchable probate professionals. Also bear in mind that various Journalist’s reporting these types of stories must be cognizant not to agitate the powers that be in their regions newspaper publishing circles when selecting a spin on sensitive court cases. Case in point; in one area a political PAC and an appearing & dispersing probate focused law firm makes for strange bed-fellows as described in this Seattle Times article “FIrm dissolves after giving pro-Romeney PAC $ 1 million“. One could surmise, based on this article and others like it, that certain PACs and probate law firm money leads to a trail of dark-money political contributions as well as chicanery in charitable endowments. This would be alarming if such matters further involved undue influence and elder exploitation in long-running litigation.

Undue Influence of Mother by Attorney in South Idaho.

IDAHO PRESS July 30, 2018: Court rules lawyer exercised ‘undue influence’ over elderly mother’s will. 

“The Idaho Supreme Court on Monday upheld a lower court’s ruling that a Boise attorney exercised “undue influence” over his elderly mother when he served as sole witness for a will leaving all her assets to him — cutting out his sister and brother. Victoria H. Smith, who died in 2013 at nearly 100 years old, and her late husband had real estate holdings and other assets estimated at between $1 million and $27 million, according to the high court’s decision. Smith made her will in 1990. In 1999, she granted power of attorney to her son, Vernon K. Smith, and after a fall in 2008, granted a more far-reaching set of legal powers to him. The son drafted both documents. He then used those powers in 2012 to transfer all his mother’s assets to himself.”

The Digital Commons @ UIdaho Law (Idaho Supreme Court Records & Briefs) provides an in-depth respondents account in the Matter of Estate of Smith Respondent’s Brief Dckt. 45313.

Alleged Undue Influence of Mother(s) by Lawyer(s) & Trustee(s) in North Idaho.

Mining and Homesteaded Land Dynasties Are Key Catalysts For Attorney Assisted Asset Grabs & Undue Influence Allegations of Health Compromised Elderly Women.

Family linage and assets elderly women have title to can lead to polyvictimization and even cross-generational or multiple family polyvictimization. When one of the children in these types of family matters is an attorney this increases opportunities and the access to exploit both the elderly woman and probate process, either in or outside the court (See Elder Abuse Fraud Triangle). Moreover, if the family or probate attorney(s) are well connected in regional probate, civic, real estate or business law circles known to exchange favors then seniors in other families may also be positioned for risk or generational asset grabs. An example would be a family lawyer whom has his sibling(s) disinherited while working on another case where the attorney works in-concert with other court officers, private or public trustees to have another families siblings, including disabled persons disinherited. When multiple cases involves dependent elderly women with disabilities, failing health/memory and coordinated efforts among professionals, an enterprise that unjustly profits from the disabled may be at play. Organized probate enterprises that unjustly profited from the elderly occurred in Clark County, Nevada, Cuyahoga County, Ohio, Bernilillo County and Ayudando Guardians Inc both in New Mexico. There are more examples as well.

Spokesman Review, July 24, 2015: Magnuson son sues siblings over estate.

“Before she died, Colleen Magnuson’s health had been in decline for several years, according to the lawsuit. Her will was drafted in 2002 along with her husband’s, and both named all five of their children as primary beneficiaries. Her husband died in 2009, and in 2011 she signed a new will drafted by a notary who worked in John Magnuson’s law office. The new will removed Thomas Magnuson as a beneficiary and granted more money to his four siblings. Another revision in 2013, signed by a beneficiary on Colleen Magnuson’s behalf, granted all art, jewelry, furniture, tools, cars and boats, among other belongings, to the other four children. The suit says John Magnuson provided their mother’s legal counsel and “otherwise had a confidential relationship” with her while the will was being revised.”

Spokesman Review: Siblings battle in court over fate of forested ‘piece of heaven’ on Lake Pend Oreille.

IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 42916

Siblings’ expert witness, Dr. Bennett Blum, submitted an affidavit in which he opined that the Sixth Amendment “resulting in the Plaintiffs being disinherited and James Green receiving Ralph and Jeanne’s entire estate indicates a transaction that was the result of James Green’s undue influence over Ralph and Jeanne.”

Green v. Green :: 2017 :: Idaho Supreme Court

Dwight Randy Green, Kathy Lefor, and Gary Green (collectively, “Siblings”), appealed the district court’s grant of summary judgment and dismissal of their lawsuit against James Green (“James”). Siblings brought this action to challenge the Sixth Amendment to the Ralph Maurice and Jeanne Green Revocable Inter Vivos Trust (“the Trust”), alleging it was the product of undue influence.

https://bonnercountydailybee.com/…/supreme-court…/

“Buchanan dismissed the siblings’ complaint after striking an affidavit filed by a doctor who concluded that the elder Greens were subjected to undue influence by John Green. Buchanan ruled that the doctor failed to link his opinion to supporting facts.”

For additional background information on these cases and surrounding circumstances this article at the Sandpoint Reader: Heaven and hell: Inside the legal, family saga surrounding Camp Bay is a good sources to gain the families perspectives. Also learn more on undue Influence in estate planning from internationally recognized expert on the evaluation of undue influence and manipulation tactics, especially those used in financial exploitation of the elderly; Interview with Bennett Blum. M.D. a Park Dietz Forensic Psychiatry Expert— the expert that contributed analysis on the Green v. Green case.


Stark Contrasts in Undue Influence Interpretations Between North and South Idaho Counties Regarding Attorneys With Elderly Dependent Mothers Whom Disinherit Siblings.

In the cases of Smith v. Smith, Magnuson v. Magnuson and Green v. Green there are similar repeating circumstances with substantially different results between Ada Counties probate court in Smith v. Smith in comparison to Kootenai County probates interpretations in Magnuson v. Magnuson, and Green v. Green. The later two cases occurred just prior to Smith v. Smith precedent at around the same time with the same attorney defending the disinheriting documents. Matters which may have become incentivisng for other Kootenai County area estate planning attorneys.

The reality in some cases in various counties, is that if an attorney assists in illicit/unduly influenced estate transfers or the abusive care-provider has an attorney assisting/defending these legal matters, accountability is often irrelevant for those committing abuse, negligence, fraud or exploitation The can even apply if the senior’s estate is liquidated or the senior is injured or dies prematurely from a home-care provider’s psychological torment or gross negligence.

Just how common is it for Attorneys to draft documents so their dependent and memory impaired Mother’s disinherit their rivals such as siblings, grandchildren or the elder’s dearest friends?  How common is it for a family attorney scrivening for themselves or with a PoA, trustee or home-care provider to have Mom or Dad unduly influenced in order to supersede prior estate plans and replace themselves as heirs—even where the testators or testatrixes long-established heirs had already been established when the senior was independent?

Such depraved actions could be described as tortious interference of an inheritance or in plain English inheritance hijacking or involuntary asset transfers. When an elder person can’t provide their own life necessities, is dependent, memory-impaired and requires life-sustaining necessities these types of document schemes become common place. Estate looting often commences as soon as the elder’s memory or health starts to diminish. The maps below and bulleted events in the second part of this article series demonstrates numerous examples in the Northwest, even without delving into this nationwide trend.

Estate planning attorneys know Probate courts often allows such brazen behavior, while the State Statutes and Federal Acts prohibit this type of elder exploitation. This leaves those trying to protect the senior from having their assets stolen, even before their untimely demise, in a state of cognitive dissonance; perplexed and trying to understand why judicial decisions and laws are at odds. The loss of control, their assets and family fighting literally causes added stress to the senior’s already comprised heart.  Broken Heart Syndrome is a real medical condition and contributes to why seniors face a 300% increase in dying prematurely from abuse and exploitation, even if the abuse is mild and not physical.   This article’s research in Idaho dates back 20 years and shows this may be more of common practice than one would hope. Elder justice advocate focus groups, research forums and the news reporter reports tacked in the Geo-intel Elder Abuse Repository (GEAR) used in this Exposé can attest.

What a horrible, psychologically distressing circumstance a disabled, dependent elderly parent is forced to deal with when their sibling-alienating care-provider is a dominating family member or professional adviser unfairly pressuring them to disinherit or substantially alter their long-established estate plans to favor one child over others.  When the elder person is dependent on a child for legal services, or arranging legal services, as well as food, water, shelter, medical necessities they may not have much of choice but to silently acquiesce to the demands of their care provider. This is also circumstantially typical when a senior has a dreaded fear of elder care facilities or wants to remain alive in an environment where their captive care providers are not angry with them.   The latter is a central reason why abused elders remain quite on abusive circumstances; this and failing memory which also explains why exploited seniors are considered poor court witnesses. A circumstance that is not unlike mob witnesses in RICO cases. In some cases, Alzheimer sufferers won’t even remember being physically abused, let alone whatever document they signed that they didn’t fully understand, recall the following day or even read in the first place when their signature was demanded.

For the morally-guided lay person which constitutes a regional body relevant to public policy stake-holders,  undue influence practices by professionals on their parent(s) and/or while providing legal assistance for an obnoxiously entitled or greed-sickened child (or children and their cohorts working as a team) exploiting elderly women in such “legal?” or easily manipulated document transfers would appear unconscionable. Typically, the accuracy of this statement would resonate in competent venues that allow due process or with Jury’s if such matters were allowed to be presented to Jurors in probate matters. However, in almost all cases these types of matters are decided by elected probate judges whom rely on third-party court officers such as: social worker or attorney Guardian ad Litems, court visitors, primary care physicians and neurocognitive psychologists.

In some cases these third-party testimonials have been arranged by the courts preferred parties legal council whom have a professionally-incestuous working relationships with select professionals whom have an ingrained history with the Court. This tends to be more common in rural and sub-rural court districts or crony-aligned probate courts. This was also another controversial aspects of the Britney Spears case, is common in many other guardianship-conservatorship proceeding and thousands of family law cases across the country. This is an additional area of conflict that further opens the Pandora’s box called “conflicts-of-interest”; arguments which both courts and attorneys avoid like the plaque it is. Third party reports can be easily manipulated by minimizing the facts or leaving them out entirely. Evaluative reports often split the difference and say both parties are at fault, even when there is unsupported defamation versus clear evidence of abuse, negligence or exploitation by one party. This is the rigging realm of legal gamesmanship where moving various players and their tactically worded & timed testimonies becomes crucial to winning or losing in litigation process, regardless of justice. This is where the system becomes rigged and justice is pushed to the breaking point.

Brazen legal gamesmanship that exploits, not only the unduly influenced senior, but both the grey and crystal-clear areas of the law, is representative of conduct that would not be accepted in contract law but is fair game in abetting or a fabricated probate theatrics.  Circumstances that undoubtedly favors asset obsessed perpetrators because they have higher favorable odds by transferring assets or land via undue influence in “due process limiting” probate court schemes prior to selling any real estate. When probate rulings favor predatory document schemes, TEDRA charades or illicitly timed Living Trusts, this serves to embolden other estate planning attorneys to continue the practice. The Smith v. Smith ruling should reduce such practices from repeat occurrences in Ada and surrounding counties, While Magnuson v. Magnuson, Green v. Green and there are many more similar cases, place the elderly community at risk.

Cited Undue Influence cases & relevant Idaho case Statutes: Idaho Code § 12-121, Idaho Code § 15-2-502, Idaho Code § 15-2-503 , Idaho Code § 15-8-208 , Idaho Code § 15-12-103 (1) , Idaho Code § 15-12-114(8) , Idaho Code § 15-12-116(1) , Idaho Code § 15-12-117 , Idaho Code § 15-12-201(1)(b) vi, , Idaho Code § 17-201 , Idaho Code § 17-201(3) , Idaho Code § 17-201(5) . RULES:  Rule 54(e)(2), I.R.C.P.,  Rule 56(c), I.R.C.P,  Rule 83(a)(2)(F), LR.C.P.  What Constitutes Power Coupled with an Interest within Rule as to Termination of Agency, 28 A.L.R. 1243 §2(a).

Beckstead v. Price, 146 Idaho 57, 190 P.3d 876 (2008), Blackman v. Edsall, 68 P. 790 (Colo. 1902), Blough v. Wellman, 132 Idaho 424, 974 P.2d 70 (1999), Bongiovi v. Jamison, 110 Idaho 734, 718 P.2d 1172 (1986), Burke v. Burke, 082417 DESC. 48 (2017), Carroll v. Norton, 3 Brad.. Sur 291, In re Arnold’s Estate, 16 Cal.2d 573, 107 P.2d 25 (1940), In re Burke Estate, Del.Ch. Lexis 121 (2016), Estate of Conway, 152 Idaho 933, 277 P.3d 380 (2012), In re Corwin’s Estate, 86 Idaho 1, 383 P.2d 339 (1963), In re Hannam’s Estate, 236 P.2d 208 (1951), In re Heazle’s Estate, 74 Idaho 72, 257 P.2d 556 (1953), Estate of Higgins, 104 P. 6 (Cal. 1909), In re Lunders ‘ Estate, 74 Idaho 448, 263 P.2d 1002, (1953), In re Estate of Randall, 60 Idaho 419, 93 P. 2d (1939), In re Wallace ‘s Will, 265 N.Y.S. 898 (1933), Gill v. Gill, 254 S.E.2d 122 (Va. 1979), Gmeiner v. Yacte, 100 Idaho 1, 592 P.2d 57 (1979). Green v. Green,161 Idaho 675, 389 P.3d 961, 966 (2017), Green River Ranches, LLC, v. Silva Land Co., LLC, 16, Idaho 385, 397 P.3d 1144 (2017) 1, Griffith v. Clear Lakes Trout Co., 146 Idaho 613, 200 P.3d 1162 (2009), Howell v. Eastern Idaho Railroad, Inc., 135 Idaho 733, 24 P.3d 50 (2001), King v. McDonald, 90 Idaho 272, 410 P.2d 969 (1965), Krischbaum v. Dillon, 567 N.E.2d 1291 (Ohio, 1991), Lehmkuhl v, Bolland, 114 Idaho 503, 757 P.2d 1222 (1988), Lohman v. Flynn, 139 Idaho 312, 78 P.3d 379 (2003), Panike & Sons Farms, Inc. v. Smith, 147 Idaho 562, 212 P.3d 992 (2009), Pincock v. Pocatello Gold, 100 Idaho 325, 597 P.2d 211 (1979), Swaringen v. Swanstrom, 67 Idaho 245, 175 P.2d 692, (1946), Watkins Co, LLC, v. Storm, 152 Idaho 531, 272 P.3d 503 (2012), Weitz v. Green, 148 Idaho 851, 230 P.3d 743 (2010).


Idaho Needs Consistency In Probate Courts, Undue Influence Written into State Statues & Revised/New Title 18 Code. These Were Some of The Merits of House Bill 404 that Legislators, Lawyers and Courts Should ConsiderRealizing That Undue Influence Related Elder Abuse is Reprehensible and Unconscionable To Public Policy.

Undue Influence Key Indicia and Idaho Probate Court Support Research Sources,

Leading Undue Influence Expert Court Witnesses.

» The Bernatz SCAM Model,

bernatzexperts.com/areas-of-expertise/scam%E2%84%A2-model

» Bennett Blum, Undue influence-Behavioral Models,

bennettblummd.com/undue_influence_models.html

UNDUE INFLUENCE IN AN ESTATE PLAN

https://yourlawcounsel.com/undue-influence-in-an-estate…/

A probate judge will look for a claimant to prove that the will either

1) Leaves property in an unexpected manner, cutting out close family members in favor of others without an obvious explanation before their death

2) The will-maker may have been particularly trusting of, or dependent on, the influencer, sometimes referred to as a confidential relationship

3) Frailty, illness, or fear of abandonment make the will-maker susceptible to undue influence

4) The confidential relationship influencer took outright advantage of the will-maker and directly benefited by substituting a will of their choosing and not the will-makers

Document Suspicions Circumstances of Elder Abuse, Exploitation Fraud & Undue Influence, Such As:

 (1) the identified victim’s susceptibility or vulnerability to influence (including among other things issues related to age, physical or mental deterioration, emotional state, education, finances, etc.);

 (2) a confidential relationship between the supposed perpetrator and identified victim;

(3) beneficiary’s active involvement or participation in procuring the legal instrument in question;

 (4) secrecy concerning the existence of the transaction or legal changes, or the events occurring in haste;

(5) lack of independent advice related to that transaction or new legal document;

(6) changes in the identified victim’s attitude toward others;

(7) discrepancies between the identified victim’s behavior and previously expressed intentions;

(8) the unjust or unnatural nature of the terms of the transaction or new legal instrument (new will, new trust, etc.);

(9) anonymous criticism of other potential beneficiaries made to the identified victim;

 (10) suggestion, without proof, to the identified victim that other potential beneficiaries had attempted to physically harm him or her;

(11) withholding mail;

(12) limiting telephone access;

(13) limiting visitation;

 (14) limiting privacy when victim is with others (which conduct is generally known as “chaperoning”); (13) discussion of transaction at an unusual or inappropriate time;

 (15) consummation of the transaction at an unusual place;

 (16) use of multiple persuaders against a single vulnerable person;

 (18) demand the business be finished at once;

(19) extreme emphasis on the consequences of delay;

 (20) obtaining a lawyer for the victim;

 (21) using victim’s assets ‐ such as property, money, credit cards, etc.;

(22) becoming conservator, trustee, beneficiary, executor, etc.;

(23) obtaining access to bank accounts;

 (24) obtaining access to safety deposit boxes;

(25) having the victim name the perpetrator on Power of Attorney forms;

 (26) isolating the testator and disparaging family members;

(27) mental inequality between the decedent and the beneficiary;

 (28) reasonableness of the will or trust provision;

(29) presence of the beneficiary at the execution of the will;

(30) presence of the beneficiary on those occasions when the testator expressed a desire to make a will;

(31) recommendation by the beneficiary of a lawyer to draw the will;

(32) knowledge of the contents of the will by the beneficiary prior to execution;

 (33) giving of instructions on preparation of the will by the beneficiary to the lawyer drawing the will; and,  (34) securing of witnesses to the will by the beneficiary.

Undue Influence & Probate Research Projects

Research Focus State, Idaho: Elder Abuse, Undue Influence Cases & Probate Precedents.

1. Undue influence may be inferred from the fact that the beneficiary was active in the preparation of the will. In re Lunders’ Estate, (1953) 74 Idaho 448, 454, 263 P.2d 1002; Estate of Randall, (1939) 60 Idaho 419, 93 P.2d 1.

2. Undue influence has been defined as domination by the guilty party over the testator to such an extent that his free agency is destroyed and the will of another person substituted for that of the testator. In re Eggan’s Estate, 86 Idaho 328, 386 P.2d 563(1963); In re Lunders’ Estate, supra.

3. Although conclusive rights should not be given it, the fact that the testator having the capacity and ability to do so failed for a substantial period of time to change or revoke a will alleged to be the product of undue influence, negatives the claim of undue influence.” 94 C.J.S. Wills § 261, p.1143. With respect to a will which also continued unchanged for two years prior to the testator’s death, calling it strong evidence that he was not coerced into making it, but that it was entirely satisfactory to him when made and that satisfaction continued until his death.”Laberee v. Laberee, 112 Or. 44, 53, 227 P. 460, 462, 228 P. 686; In re McCaslin’s Estate (1960) 222 Or.599, 352 P.2d 1111.

4. If, prior to executing his last will, a testator shows a continuity of purpose running through his former wills and codicils which indicates a settled intent or consistent state of mind on his part as to manner of distributing his estate, such fact may be considered in determining whether he is in possession of a disposing mind, that is, had testamentary capacity and was free from undue influence in making his last will.” In re Nelson’s Estate, 72 Wyo. 444,266 P.2d 238 (1954); In re Hart’s Estate, 107 Cal.App.2d 60, 67, 236 P.2d 884, 889.

5. Weakened mental and physical condition of Testator are factors to be considered in determining question of undue influence. Estate of Brown, 52 Idaho 286, 15 P.2d 604; In re Lunders’ Estate, 74 Idaho 448, 263 P.2d 1002.

6. “Undue influence consists of domination by guilty party over testator to such extent that his freeagency is destroyed and will of another person is substituted for that of testator.” Witthoft v. Gathe, 38 Idaho 175, 221 P. 124; In re Lunders’ Estate, 74 Idaho 448, 263 P.2d 1002.

7. Undue influence is any means employed upon and with testator which under circumstances and conditions by which testator was surrounded, he could not well resist, and which controls his volition and induced him to do what otherwise would not have been done. In re Eggan’s Estate, 86 Idaho 328, 386 P.2d 563.

8. Influence arising from gratitude, affection or esteem is not undue, nor can it become such unless it destroys the free agency of the testator at the time the instrument is executed and shows that the disposition therein results from fraud, imposition and restraint of the person whose superior will prompts the execution of the testament in the particular manner which the testator adopted. In re Estate of Hill, 198 Or. 307, 335, 256 P.2d 735, 747; In re McCaslin’s Estate, 222 Or. 599, 352 P.2d 1111.

9. Influence gained by kindness and affection will not be regarded as undue if no imposition or fraud be practiced, even though it induced Testator to make unequal disposition of his property in favor of those who contributed to his comfort. In re Reddaway’s Estate, 214 Or. 410, 329 P.2d 886.

10. It is not sufficient for the contestant to merely prove circumstances consistent with the exercise of undue influence; that before the will can be overthrown the circumstances must be inconsistent with the voluntary action on the part of the testator. In re Welch’s Estate, 43 Cal.2d 173, 272 P.2d 512 (1954).

11. Mere existence of a confidential relationship to testator does not in itself establish undue influence. To set aside a will on the ground of undue influence there must be shown influence used directly to procure will, amounting to coercion destroying free agency on part of testator.In re Eggan’s Estate, 86 Idaho 328, 386 P.2d 563.

12. A will cannot be impeached by the subsequent oral declarations of the Testator. Gwin v. Gwin, 5Idaho 271, 48 P. 295.

13. The declarations of a testator made after the execution of a will showing his dissatisfaction therewith and his intention to execute a new will are not admissible to show that said will was executed under duress or undue influence. Gwin v. Gwin, 5 Idaho 271, 48 P. 295.

14. The general rule established by the overwhelming weight of authority is that declarations of the testator not made contemporaneously with the execution of the will, or so near thereto as to constitute a part of the res gestae, are not competent as direct or substantive evidence of the truth of the matters stated when offered on the issue of undue influence inducing the execution of the will. In re Estate of Wayne, 134 Or. 464, 291 P. 356, 294 P. 590,79 A.L.R. 1427; 148 A.L.R.1225.

15. A confidential relation exists between two persons, whether their relations be such as are technically fiduciary or merely informal, whenever one trusts in or relies on another. The question is whether or not trust was reposed. Sewell v. Ladd, (Mo.App. 1942) 158 S.W.2d 752,756.16. The existence of a confidential relation is purely a question of fact. Ringer v. Finrock, (Pa. 1941) 17 A.2d 348, 350.

17. A confidential relation may exist as a matter of fact whenever one person has reposed a special confidence in another to the extent that the parties do not deal with each other on equal terms, either because of an overmastering dominance on one side, or weakness, dependence or ignorance on the other side. Ringer v. Finrock, (1941) 340 Pa. 458, 17 A.2d 348, 350; Floyd v. Green, (1939) 238 Ala. 42, 188 So. 867, 871; In re Null’s Estate, (1930) 302 Pa. 64, 153 A. 137,139; In re Day’s Estate, (1953) 198 Or. 518, 257 P.2d 609, 614.

18. Where the beneficiary took the testator to a lawyer and remained with the testator during the preparation and execution of the will, even though the beneficiary was outside of the lawyer’s office, or in the waiting room, while the testator was conferring with the lawyer and while thewill was being executed, there is such evidence of activity in the preparation of the will that undue influence may be inferred from the presence of the beneficiary in this manner. In re Lunders’ Estate, (1953) 74 Idaho 448, 451, 263 P.2d 1002; Estate of Randall, (1939) 60 Idaho419, 93 P.2d 1; In re Gagliasso’s Estate, (1957) 150 Cal.App.2d 65, 309 P.2d 513, 514; In re Estate of Leonard, (1949) 92 Cal.App. 420, 207 P.2d 66, 72.

Related Idaho Elder Exploitation and Probate Matter Articles – North Idaho’s Probate Court Dominating Attorney’s Intentionally Stoking Family Conflict To Transfer Assets To Their Clients & Themselves.

Seattle Times: Secrecy Hides Cozy Ties in Guardianship Case

The Gold Bar Reports; A Whistle-blower & Former Lawyer’s Expose of Inland Northwest Corruption in Elder Law, Probate Courts & State Bars

“License to steal” with the assistance of the Washington State Bar and Washington State Guardian Board https://goldbarreporter.wordpress.com/…/lin-odell…/

Geriatric Care Service Providers: Murder & Nursing Home Case Management https://goldbarreporter.wordpress.com/…/attorney-lin…/

State Bar & Racketeering https://goldbarreporter.wordpress.com/…/washington…/

SnoCo Reporter Investigative Journalism: Bad Business & Undue Influence: 

https://www.snocoreporter.com/lin-odell-bad…/

“License to steal” with the assistance of the Washington State Bar and Washington State Guardian Board https://goldbarreporter.wordpress.com/tag/mary-cus…

Undue Influence & Elder Abuse; The Status Que in Idaho Estate Planning.

Court rules lawyer exercised ‘undue influence’ over elderly mother’s will https://www.idahopress.com/…/article_2fcaba58-eae0-5274…

Elder abuse can be ‘hidden problem’ https://www.idahopress.com/…/article_ea36e923-7fa6-559d…

Insidious Pressure & The Sandpoint, Idaho Real Estate Baron’s Trust Battles. VILLELLI v. R.A.V., INC.

https://www.leagle.com/decision/incaco20121228040

Who Runs The Elder Care Policies & Probate Courts: A lesson for Kootenai County From Clark County.

Organized “Elder Exploitation Crime Rings” by Probate Court Professionals Devastate Families & Highlight Corruption in County Probate Courts & Eldercare Facility Networks.

Elders are the undeserved community this is glaringly obvious becuase apathetic, absent, tax-paid professionals such as city and county law enforcement, courts & prosecutors can’t or refuse to keep the communities elderly safe or prosecute white-collar criminals, Elder exploiters often run in packs of professionals which can included; estate planning attorneys, guardians, conservators, primary care physicians, neurocognitive psychologists, LSW court visitors, Guardian ad litems, accountants, real estate agents, bankers, and financial managers. Individually and as a group they intimidate frail and memory-compromised seniors in concerted efforts to force them to capitulate to their demands. All emboldened knowing that law enforcement, prosecutors and compromised probate courts will not enforce the states elder protection statutes. In the case of state licensed Guardian; April Parks she ran her exploitation & elder trafficking schemes with the assistance of attorneys, judges & police.

RICO, Guardianships & Elder Abuse | The STATE OF NEVADA Plaintiff, -Vs_- APRIL PARKS #1571645, MARK SIMMONS, GARY NEAL TAYLOR, NOEL PALMER SIMPSON

“Defendants APRIL PARKS, MARK SIMMONS, and GARY NEAL TAYLOR, did on or between December 21, 2011 and July 6, 2016, then and there, within Clark County, Nevada, knowingly, willfully and feloniously, while employed by or associated with an enterprise, conduct or participate either directly or indirectly, in racketeering activity through the affairs of said enterprise, and/or in the affairs of the enterprise through racketeering activity, did engage in said acts, to wit: by Defendants working for A Private Professional Guardian, LLC using their position to steal funds belonging to elderly and disabled persons over whom they had guardianship authority, through the use of a series of fraudulent billing practices, said activity constituting Racketeering contrary to NRS 207.400 (1)(c)(2).

KTNV 13 Las Vegas: The guardian is guilty: April Parks, others plead guilty in guardianship abuse case

The Guardians: Documentary Trailer

“If you’re retired, wealthy, and thinking of moving to Las Vegas, think twice. An investigative look at the systemic abuse of elderly people by court-appointed guardians.”

In the Rare Case An Elder Exploitation Case Is Presented to a Jury. Below Are the Juror Instructions

Idaho Civil Jury Instructions

https://isc.idaho.gov/main/civil-jury-instructions

Although the Court is not approving any specific instruction and will simply address instructions through appellate review, the Court does hereby accept the recommendation of the Committee and in accord with IRCP 51(a)(2) the instructions shall be disseminated for general use by the trial bench and the bar in Idaho

IDJI 6.28.6 – Defense of undue influence

INSTRUCTION NO. ____

            To establish the defense of undue influence, the party must prove each of the following propositions:

            1.         The party was compelled to accept the contract by deceit, force or fear;

            2.         But for the deceit, force or fear, the party would not have entered into the contract.

            A person has a right by fair persuasion or argument to induce another person of sound mind to contract in his favor, and a transaction under such influence will not be invalid on that account.

            If you find from your consideration of all the evidence in the case that each of the foregoing propositions has been proved, your verdict should be for the [party claiming the issue]. If you find that any of the propositions has not been proved, then your verdict should be for [party adverse to this issue].

IDJI 6.07.2 – Unjust enrichment – equitable theories

INSTRUCTION NO. ___

            Even though there is no agreement between the parties, under certain circumstances where a party has been unjustly enriched by the actions of another the law will require that party to compensate the other for the unjust gain.  To recover under this theory, the plaintiff has the burden of proving each of the following:

            1.         The plaintiff provided a benefit to the defendant;

            2.         The defendant accepted the benefit; and

            3.         Under the circumstances, it would be unjust for the defendant to retain the benefit without compensating the plaintiff for its value.

Comment:

For the elements of unjust enrichment, see Hertz v. Fiscus, 98 Idaho 456, 567 P.2d 1 (1977); Common Builder, Inc. v. Rice, 126 Idaho 616, 888 P.2d 790 (App. 1995).

IDJI 6.27.1 – Fraud

INSTRUCTION NO. ___

            To establish the defense of fraud, the defendant has the burden proving by clear and convincing evidence each of the following propositions:

            l.  The plaintiff made a representation of a past or present fact;

            2.  The representation was false;

            3.  The represented fact was important;     

            4.  The plaintiff knew the representation was false (or acted with a reckless disregard of the truth of the representation);

            5.  The defendant was not aware of the falsity of the representation;

            6.  The plaintiff intended that defendant rely upon the representation in agreeing to enter into the contract;

            7.  The defendant did rely upon the representation;

            8.  The defendant’s reliance was justified; and

            9.  The defendant [has returned] [has offered to return] to the plaintiff (whatever the defendant would be legally obligated to return in order to prevent his being unjustly enriched.

            If you find from your consideration of all the evidence in the case that each of the foregoing propositions has been proved, your verdict should be for the defendant.  If you find that any of the propositions has not been proved, then your verdict should be for the plaintiff.

Estoppel

Estoppel is a judicial device in common law legal systems whereby a court may prevent or “estop” a person from making assertions or from going back on his or her word; the person being sanctioned is “estopped”. Estoppel may prevent someone from bringing a particular claim. Legal doctrines of estoppel are based in both common law and equity. It is also a concept in international law.

IDJI 6.10.1 – Breach of bilateral contract – general case – no affirmative defenses

INSTRUCTION NO. ___

            The plaintiff has the burden of proving each of the following propositions:

            1.  A contract existed between plaintiff and defendant;

            2.  The defendant breached the contract;

            3. The plaintiff has been damaged on account of the breach; and

            4.  The amount of the damages.

            If you find from your consideration of all the evidence that each of the propositions required of the plaintiff has been proved, then you must consider the issue of the affirmative defenses raised by the defendant, and explained in the next instruction.  If you find from your consideration of all the evidence that any of the propositions in this instruction has not been proved, your verdict should be for the defendant.

INSTRUCTION NO. ___

            In order to establish plaintiff’s claim of breach of a unilateral contract, the plaintiff has the burden of proving each of the following propositions:

            1. The defendant made statements which constituted an “offer” as defined in these instructions.

            2. The defendant intended that a person, such as the plaintiff, would perform acts in accordance with the offer.

            3. The plaintiff performed the acts required or requested by the defendant’s offer.

            4. The plaintiff performed the acts with the intention that the acts would constitute an acceptance of the defendant’s offer.

            5. The defendant was notified of plaintiff’s performance within a reasonable time.

            6. The defendant has not fulfilled defendant’s part of the offer.

            7. The nature of the performance required of defendant to complete the contract, and the value or dollar amounts thereof.

 If you find from your consideration of all the evidence that each of these propositions has been proved, your verdict should be for the plaintiff.

Idaho Civil Jury Instructions – Capacity To Contract, Unjust Enrichment & Fraud

https://isc.idaho.gov/main/civil-jury-instructions

Although the Court is not approving any specific instruction and will simply address instructions through appellate review, the Court does hereby accept the recommendation of the Committee and in accord with IRCP 51(a)(2) the instructions shall be disseminated for general use by the trial bench and the bar in Idaho



IDJI 6.02.4 – Capacity to contract – mental capacity to contract

INSTRUCTION NO. ____

            A person has the mental capacity to enter into a contract when the person possesses sufficient mind to understand, in a reasonable manner, the nature, extent, character, and effect of the contract in question.

To establish the defense of undue influence, the party must prove each of the following propositions:

            1.         The party was compelled to accept the contract by deceit, force or fear;

            2.         But for the deceit, force or fear, the party would not have entered into the contract.

            A person has a right by fair persuasion or argument to induce another person of sound mind to contract in his favor, and a transaction under such influence will not be invalid on that account.

            If you find from your consideration of all the evidence in the case that each of the foregoing propositions has been proved, your verdict should be for the [party claiming the issue]. If you find that any of the propositions has not been proved, then your verdict should be for [party adverse to this issue].

IDJI 6.07.2 – Unjust enrichment – equitable theories

INSTRUCTION NO. ___

            Even though there is no agreement between the parties, under certain circumstances where a party has been unjustly enriched by the actions of another the law will require that party to compensate the other for the unjust gain.  To recover under this theory, the plaintiff has the burden of proving each of the following:

            1.         The plaintiff provided a benefit to the defendant;

            2.         The defendant accepted the benefit; and

            3.         Under the circumstances, it would be unjust for the defendant to retain the benefit without compensating the plaintiff for its value.

Comment:

For the elements of unjust enrichment, see Hertz v. Fiscus, 98 Idaho 456, 567 P.2d 1 (1977); Common Builder, Inc. v. Rice, 126 Idaho 616, 888 P.2d 790 (App. 1995).

IDJI 6.27.1 – Fraud

INSTRUCTION NO. ___

            To establish the defense of fraud, the defendant has the burden proving by clear and convincing evidence each of the following propositions:

            l.  The plaintiff made a representation of a past or present fact;

            2.  The representation was false;

            3.  The represented fact was important;     

            4.  The plaintiff knew the representation was false (or acted with a reckless disregard of the truth of the representation);

            5.  The defendant was not aware of the falsity of the representation;

            6.  The plaintiff intended that defendant rely upon the representation in agreeing to enter into the contract;

            7.  The defendant did rely upon the representation;

            8.  The defendant’s reliance was justified; and

            9.  The defendant [has returned] [has offered to return] to the plaintiff (whatever the defendant would be legally obligated to return in order to prevent his being unjustly enriched.

            If you find from your consideration of all the evidence in the case that each of the foregoing propositions has been proved, your verdict should be for the defendant.  If you find that any of the propositions has not been proved, then your verdict should be for the plaintiff.

Estoppel

Estoppel is a judicial device in common law legal systems whereby a court may prevent or “estop” a person from making assertions or from going back on his or her word; the person being sanctioned is “estopped”. Estoppel may prevent someone from bringing a particular claim. Legal doctrines of estoppel are based in both common law and equity. It is also a concept in international law.

IDJI 6.10.1 – Breach of bilateral contract – general case – no affirmative defenses

INSTRUCTION NO. ___

            The plaintiff has the burden of proving each of the following propositions:

            1.  A contract existed between plaintiff and defendant;

            2.  The defendant breached the contract;

            3. The plaintiff has been damaged on account of the breach; and

            4.  The amount of the damages.

            If you find from your consideration of all the evidence that each of the propositions required of the plaintiff has been proved, then you must consider the issue of the affirmative defenses raised by the defendant, and explained in the next instruction.  If you find from your consideration of all the evidence that any of the propositions in this instruction has not been proved, your verdict should be for the defendant.

INSTRUCTION NO. ___

            In order to establish plaintiff’s claim of breach of a unilateral contract, the plaintiff has the burden of proving each of the following propositions:

            1. The defendant made statements which constituted an “offer” as defined in these instructions.

            2. The defendant intended that a person, such as the plaintiff, would perform acts in accordance with the offer.

            3. The plaintiff performed the acts required or requested by the defendant’s offer.

            4. The plaintiff performed the acts with the intention that the acts would constitute an acceptance of the defendant’s offer.

            5. The defendant was notified of plaintiff’s performance within a reasonable time.

            6. The defendant has not fulfilled defendant’s part of the offer.

            7. The nature of the performance required of defendant to complete the contract, and the value or dollar amounts thereof.

            If you find from your consideration of all the evidence that each of these propositions has been proved, your verdict should be for the plaintiff.

GIS Geo-Intil News Article Repository & Repeating Trend Analysis Maps.