By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Probate and Trust Litigation Attorney

In my last blog I began a series of articles on the topic of the elderly covering; undue influence, confidential relationships, and elder abuse. To read it Click Here. In this article I will describe and explain traditional examples of confidential relationships so you can better understand the concept.

Certain relationships between an elderly person and someone else will be deemed confidential in nature such that a court’s suspicion(s) will be immediately raised if something questionable is done. These relationships include an attorney-client relationship, priest-penitent relationship, principal-agent relationship, and guardian-ward relationship. The attorney-client relationship has been one that courts have (generally) held there to be a confidential nature “whether or not the attorney is representing the interests of the client.” A trust develops between both parties, and often times the client defers to the advice of the attorney when making legal decisions.

Many cases have considered claims when a family member gets involved toward the end of an aged person’s life as he or she nears death. Parent-child relationships are said to be the “most natural of confidential relationships,” However, the mere existence of a family, (or any), relationship is not prima facie evidence that a confidential relationship exists. Another example, is the husband-wife relationship which invites an even greater ability for either spouse to persuade the other to change their will “by virtue of the sanctity of the marital relationship”, holding that when a wife exercises influence “by virtue of her kindness, love and affection” which leads the husband to write a will in her favor and exclude his biological children, grounds for refusing to probate the will can exist. The analysis of the state of mind of the spouse-testator at the time the will is executed is fundamental to the outcome of the case.

The father-son, father-daughter, mother-son, and mother-daughter relationship is said to be of a dominant confidential nature when the father or mother is older, of weaker mind, and needs the son or daughter to help him or her manage their financial and daily affairs. In one case an 86 year old father developed a “serious bronchial cold,” leaving him weak and dependent on the care of his son, and his daughter-in-law. “[T]he doctor found him in this weakened condition, with appetite poor and difficulty in breathing.” He developed hemorrhaging in his bowels, which led to this death. As a result of him constantly needing attention, the father went to his son for assistance in all of his business matters. “He gave the son a joint and several power over his checking account. There was physical feebleness in the father such that he had to have help in signing his name.” It was during the time the son was in control of his dad’s account that the father wrote a check out to his son for the amount of $125,000, which was challenged as a gift made under the undue influence of the son from the dependent relationship the father had with the son. The son argued that this was just a payment for all the time the father spent with him, but the court rejected the theory, holding that no consideration was ever expected to be given for these past services. Thus, the court concluded that the position that the son had over his father’s life was of a dominant nature such that the burden of proof was on him to disprove undue influence.

In contrast, a confidential relationship will not be found to exist when the testator is of “strong mind and will and in full control of his or her mental faculties.” In one case an aunt, who was in her nineties was reunited with her niece after a 20 year estrangement. In its discussion, of addressing a claim of undue influence the court mentioned that “the niece undertook to make arrangements for her aunt to be moved from a hospital to a nursing home, took steps to find a new lawyer at decedent’s request and to secure information as to the assets of the estate from the former lawyer, had expressed distrust of the former lawyer who had power of attorney over decedent and was a beneficiary and executor under her earlier will.”

The court commended the niece for taking care of her aunt, noting that it showed her “care and attention…in contrast to the lack of such care and attention by the prior related beneficiaries during the last year of her aunt’s life.” As to the question of whether there was a confidential relationship, the court noted she was the only one close to the aunt and managed her affairs, but also found that the aunt was of strong mind and will and able to understand the effects of the new will. Even though they were estranged for many years and went from barely knowing each other to the niece taking care of her aunt’s financial affairs, there was no evidence of dominance of the niece over the affairs of the aunt, and so a confidential relationship never existed between the two, rejecting the claim that the subsequent will was a product of undue influence.

To discuss your NJ Estate Probate and Trust Litigation matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.