Op-Ed: Unexamined Testamentary Freedom Supplies The Unscrupulous A License To Abuse

The following op-ed comes from Kathie Platt and was originally written on May 22, 2021.

Personal Testimony of Inheritance Exploitation

I recently came up on the one year anniversary of my 99-year-old father’s death to COVID19.  His unexpected death to COVID19 last year triggered a new will and all the changes to the distribution of his wealth and estate instituted by his “new” (late-in-life) step-family and their professional allies. There is no way to fully express my dismay and trauma over this  unaddressed and un-prosecuted crime.  

Not only did I lack the financial and legal power to pursue the predators of my father’s estate, I was repeatedly told that such a costly pursuit would be highly risky with a very low percentage chance of success. I never got past a mild protest before the attorney and CPA for the “other  side” (my late father’s “new” step family) outmaneuvered me into a position of absolute  powerlessness and silence. I am astonished not only by how easily elders are given full license to change their minds about everything at the end of their lives (without any significant  examination of their vulnerabilities and influences), but also by how weak our legal and law enforcement structures are regarding the protection of vulnerable, at-risk elders and their “first” families.  

Despite my failure to make any difference at all protecting my father and his original intentions for his estate before his death, or protesting its pillage afterwards, I have continued to advocate for awareness and change in how the courts and the law understand vulnerable elders. Notably those entities tasked with protecting an elder’s rights, too easily dismiss the alarms raised by family members as unsupportable or insignificant. 

In my quest to understand how the courts and law enforcement can passively permit radical late in-life changes to an at-risk elder’s wealth and estate to go unchallenged, I began research into  the concept of “Testamentary Freedom.” I was surprised to discover how much has been written about “Testamentary Freedom,” its controversies and potential for exploitation. Abundant evidence exists describing how this unassailable American idea of unquestioned free choice can easily be abused to deprive heirs of a parent’s estate, while enriching ingenious predators. 

While our current legal system proves generally unwilling to challenge testamentary freedom, I was deeply gratified to learn that there is growing concern for its potential abuses. Many versed in the law already understand the dangers and contradictions in granting an at-risk elder cart blanc testamentary freedom without closer examination of new circumstances and influences. The potential for abuse is greatest in those situations where his original family is strategically exempt from all knowledge of these changes until it is too late to challenge them. In our family’s experience, my father was allowed and encouraged (by new others who most stood to benefit) to make new and questionable decisions contrary to his original will and testament, resulting in the overhaul of his estate plan near the end of his life, as though he had suddenly come up with a better idea, or had received a new revelation. The following essay (Unexamined Testamentary Freedom) is not only my cry of distress over our family’s personal loss, it expresses my desire to raise awareness in the hope to help others  understand the hard work ahead of all of us in order to prevent elder financial exploitation and a legacy of traumatic consequences.

Unexamined Testamentary Freedom

I recently read an abstract in The Washington Law Review, which is particularly focused on the dangers of unchecked testamentary freedom allowing fathers to abandon care for their natural children, by leaving them out of their wills, if they so choose. As the abstract suggests, this is a right unique to America.  

It briefly states: 

Abstract: Most countries have safeguards in place to protect children from disinheritance. The United States is not one of them. Since its founding, America has clung tightly to the ideal of testamentary freedom, refusing to erect any barriers to a testator’s ability to disinherit his or her children—regardless of the child’s age or financial needs. Over the years, however, disinheritance has become more common given the evolving American family, specifically the  increased incidences of divorce, remarriage, and cohabitation. Critics of the American approach  have offered up reforms based largely on the two models currently employed by other countries:  (1) the forced heirship approach, in which all children are entitled to a set percentage of their  parent’s estate; and (2) family maintenance statutes, which provide judges with the discretionary authority to override a testator’s wishes and instead award some portion of the estate to the  testator’s surviving family members. 

Michael J. Higdon, Parens Patriae and the Disinherited Child, 95 Wash. L. Rev. 619  (2020). Available Here

Unlike anywhere else in the world, “testamentary freedom” is practically a cornerstone of American Family Justice. While this presents one set of problems for young children who lose a parent who has decided to disinherit them—and may truly put them at risk of impoverishment, the idea presents a new set of problems for family members of elders of advancing age who suddenly change their wills or estate plans in the latter years of their lives. Deterred by the legal system’s almost sacred enforcement of an American ideal, there is almost no recourse for family members to challenge an elder’s sudden or indefensible changes in the last years of his life when  he is either emotionally or cognitively most vulnerable, or both. In other words, there is no  established set of checks and balances, or counterpoint, to challenge the unassailable American  idea that an elder is always and absolutely free to choose or un-choose the recipients of his  estate.  

Safety (or preservation of an elder’s original and best intent) is given lip service in the form of the ineffectual legal tools of “capacity” and “undue influence,” which leave all the burden of proof up to concerned family members who rarely have the resources to provide sufficient evidence. Even when “proofs” are expensively obtained, they are easily discredited by subtle legal minds that excel at the game of winning at any cost, especially at the cost of one’s conscience if there is profit to gain. These unresponsive, out-dated tools of “capacity” and “influence” are rarely substantial enough to challenge sudden and uncharacteristic changes an  elder makes in the last years of his life, yet they are the sole means a family member has to try to stop the unscrupulous. Legal challenges are rarely successful and most often harmful to well intended family members who must now somehow “prove” that their own elderly parent has fallen under the influence of a financial predator, or harvester of his estate.  

When the American ideal of testamentary freedom is given full and unchallenged license to the exclusion of serious examination of circumstances and context in which these late-in-life changes are being made—and when there is an absolute failure to consider and scrutinize new players in an elder’s life that are especially concerning to the elder’s original family and heirs— good sense is thrown out the window and reason never comes into play. Yet how ubiquitously the American institution of “freedom all the time and at all cost” prevails over every individual instance in which inheritable and life-changing decisions are being made. In no category is this absolute prevalence of freedom over safety more true than in the instance of elder abuse, weakly  placed under the protection of elder justice. The safeguards are thin at best, non-existent at worst. When the American institution is defending an elder’s right to choose—even against himself, his  own family, his heirs—it goes too far, and “testamentary freedom” becomes an oxymoron readily abused by those who know only too well how to overpower the vulnerable.  

Absolute support for testamentary freedom, especially when an elder’s decisions are uncharacteristic or inconsistent with his original stated will and intent, and now suddenly benefit  new “family members” to the exclusion of original heirs, must be reviewed in context and seen  as highly suspect. This is especially true when the elder is of advanced age, facing new situations  and influences outside of his customary familial relationships, and is already experiencing  cognitive changes. Yet sadly, such scrutiny, which should be required as standard procedure, is not standard procedure in America at all. But, under the defense of “testamentary freedom,” real  scrutiny is the exception to the rule, while “freedom” is upheld by the courts and law  enforcement as practically inviolable and impossible to challenge.  

Unscrupulous “estate harvesters,” in the guise of trusted caretakers, new friends, or recently acquired stepchildren by virtue of a late-in-life marriage, know too well how to slip into an elder’s mind and convince him that their better ideas in the form of financial suggestions or estate advice are consistent with his best interest, even when these contradict previously conceived and well-considered estate and inheritance plans. Significantly, trusted others with proven history with the at-risk elder will be strategically exempt from all such communications and confidences as these “new others” easily influence the vulnerable elder’s new decision making process.  

How does this influence take place? First, by subtle or overt appeals to conscience (“Don’t you want to take care of your new wife?”), appeals that only present as controversial if one carefully reviews the context and discerns the hidden origin of these appeals and then calculates who stands most to benefit. Second, appeals to the elder to make changes are often accompanied by  implied or overt threat (“If you don’t go along, it will not go well for you. You might be abandoned if you do not comply!”) That these ploys will be readily denied by those who use them and by the elder who is vulnerable to them is also obvious. Instead, new decisions and  changes on the part of the at-risk elder are readily disguised as autonomously arrived at or independently initiated by the elder himself, then defended by the courts and law enforcement as an elder’s free choice, when the law and the courts do not have the time or resources to seriously investigate the true origins and nature of these decisions resulting in significant financial and inheritance changes.  

Those family members who cry “foul” are immediately dismissed as disgruntled or insignificant relatives, whom the elder must have had some quarrel with, or else why has he now changed everything in favor of new inheritors? Or why shouldn’t an old man have the full and free prerogative to change his mind in the last years of his life and change everything on the advice of  new confidants or caregivers, who will also directly or indirectly benefit from all the changes he is suddenly making? After all, isn’t this consistent with “testamentary freedom”? Mysteriously, new financial, legal and estate professionals suddenly appear who also insist that all financial  and estate changes are entirely autonomous and self-initiated on the part of the elder, who for  the first time in his life feels conflicted and distrusting towards his original relatives. When testamentary freedom is the only recognized guide post under the law, every red flag that might alert us to potential abuse is ignored as insignificant.  

Instead, all of the elder’s new choices are eagerly, even zealously rationalized (by those who stand most to benefit) as competent, independent, uninfluenced behavior on the part of the elder. When his first relatives question any of this, he can no longer defend himself or his choices with clear conscience, but only by distancing from those whom he has held in highest regard his whole life. His defense of his choices, like the choices themselves, are not something he can fully or faithfully explain, as they fall outside of his expressed intentions, characteristic behaviors and trusted relationships. Presented by new and unexpected competing interests, the elder is forced to re-think everything at a time in his life when he not only believed he had already settled his  affairs, but when he is most vulnerable and uncertain about everything. Those who suddenly force or persuade him into this position of making new and different choices are leveraging his vulnerability to the utmost, at once disguising their self interest as goodwill while manipulating  his fear of reprisal or consequence.  

Now forced to choose between trusted family members who have never asked anything of him, and new influencers who are exerting all the pressure of immoral authority and persuasion over  him, he will naturally side with those he fears most out of his innate desire to survive. It is exceptional in such instances for an elder, especially of advanced age and vulnerable capacity, to  resist such overt or covert persuasion. Whether cognitively whole or impaired, the oldest old are among the most vulnerable members of our society, and this has been proven over and over  again by research into the science of aging. It is not surprising then that in older age an elder often experiences a faltering of nerve or a weakening of will that is too often and easily exploited by those who understand how to take full advantage of this.  

New choices presented under pressure, or sudden demands to make changes, will be met with a degree of confusion and fear frequently persuading the elder to take the path of least resistance. Although unscrupulous family members are sometimes guilty of this, more frequently new  influencers that come in in the last years of an elder’s life are guilty of such persuasion. It is a rare elder of advanced age who is able to resist pressure or demands made by the unscrupulous. Shockingly, an elder under pressure would rather defend those whom he fears—and throw his own trusted family members under the bus—than risk displeasing his exploiters. The elder will defend them instead, especially when experiencing a perceived threat if he does not comply. This is not a new or strange phenomenon but frequently played out over and over again. The willingness of victims to defend their exploiter/abuser has been recognized for years in addressing child and domestic abuse. Elder abuse is no different. There is no one the abused victim fears more than his abuser. And no one whom he will defend more fiercely out of fear of abandonment or worse consequence.  

An elder in a compromising position—such as presented to him by new others in unfamiliar circumstances who present him new choices in the last years of his life—should not be left to the  sole care and influence of these strangers, new caregivers, or newly-acquired “family.” The shift is too radical and unsafe. Yet such is too often the case. Strategically the exploiter knows how to  push out trusted family members to make them seem unnecessary or even hostile to the elder’s best interest, replacing them with him or herself as the elder’s only true support and best advocate. Divide and conquer. Is this not an obvious exploitive tactic? When faced with this  new crisis of choice, an elder’s survival instincts, more than reason, history or conscience, will convince him to side not with whom he feels safest or once believed to be his rightful heirs, but  to side with the more overtly powerful, influential, or threatening.

The tragedy for his trusted family members is that they will be discounted, disenfranchised, or blamed in the process as  somehow deserving their dismissal and disinheritance. It has already been shown by numerous researchers of the oldest old that almost everyone of an  older age is vulnerable to exploitation regardless of cognitive wellbeing or decline. The combination of a new influencer’s overeagerness to help (masquerading as goodwill), confident takeover of the elder’s affairs, or punishing shame if he does not comply, can hardly be resisted by someone who is at the peak of vulnerability given his age and circumstance. More and more often this vulnerability outside of proven dementias has been shown to be the case regardless of cognitive decline. In other words, financial vulnerability is not merely a function of serious cognitive deterioration, but occurs almost equally in older seniors in almost every range of  mental capacity. And there is very little a family member can do to protect his or her vulnerable older parent, especially when the law and the courts do not recognize this clear and present danger as it currently exists.