Elder Abuse and Undue Influence
Eva McLaughlin
With continuing advances in medical technology and breakthroughs in medicine the average age a person dies within Australia continues to increase. It was once quite rare to see clients over ninety years of age. With these medical advances it is becoming a more common and troubling occurrence that clients or their beneficiaries are now seeking advice in instances of elder abuse.
As people age they can become more vulnerable to their adult children, their carers, friends and neighbors particularly in circumstances where there is little to no family support. While most individuals do the right thing by the elderly there are instances of undue influence and the allegations of such have continued to become an increased area of practice for lawyers.
Many times the person having a caring and close relationship to an elderly person provides invaluable benefits to their continued wellbeing. Elder abuse does not occur simply because of this heightened influence however it can occur when a party uses the influence unduly or in extreme circumstances where duress is exerted by the caretaker or family member.
Undue influence is when the party holding an influence unduly affects the freewill of the individual such as in the making of their will or in the making of gifts. A carer, friend or child should only assist the elderly person and not make these decisions for them. Undue influence can also occur during the lifetime of the individual and there are often instances where intervivos gifts are made (gifts made during the lifetime of an elderly person) and whether an undue influence was placed upon the person when the gift was made.
In addition to undue influence duress is also an issue those worried about their elderly relatives and loved ones should understand. Duress comprises the following elements:
- Pressure exerted in relation to a transaction;
- The pressure is not legitimate;
- The pressure is the key factor in the individual agreeing to the transaction; and
- The elderly individual had no reasonable alternative other than to agree.
Obviously the vulnerability of the individual in each case is a key factor when lawyers advise clients and loved ones in relation to concerns raised about changes to wills and intervivos gifts.
We highly recommend that the easiest way to ensure that there is no undue influence and to ensure the will or any intervivos gift made by an elderly loved one is not challenged is to have the elderly person receive proper legal advice.
We often assist clients in making gifts and ensuring that they have made these decisions of their own free will whether it be an intervivos gift or a gift in a will. We can also seek answers for those who believe there has been an undue influence on the individual. Please feel free to call CJM Lawyers on
1300 245 299 to make an appointment with one of our will and estate planning lawyers who will be happy to assist you.
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