A recent Mississippi Court of Appeals case illustrates the importance of good record keeping and evidence from neutral third parties where lifetime gifts are made to a caregiver child.  Mississippi law presumes that a lifetime gift (called an inter vivos gift by lawyers) made to a person with influence over the giver, such as a  caregiver, is presumptively the result of undue influence.  In other words, such gifts are presumed to be invalid.  This presumption can only be overcome by the recipient showing the following: “(1) good faith on the part of the
grantee/beneficiary; (2) grantor’s/testator’s full knowledge and deliberation of his actions

and their consequences; and (3) independent consent and action by the grantor/testator.”  While this burden can be overcome, as it was in the Hart case, it does illustrate the lengths that a gift recipient must go through to prove that the gift was not unduly influenced.  In that case, the gift recipient was able to show through the testimony of independent witnesses, such as lawyers, that the decedent knew what he was doing when making the gift.  The case illustrates the importance of making sure that a good record is made during the giver's lifetime when gifts, whether lifetime or as part of a will, are made to individuals with a confidential relationship to the giver. 

The case also illustrates that such gifts can be easily attacked, and in cases without a good trail of evidence of the giver's intent and knowledge, can be overturned.  If you believe that you have been cheated out of an inheritance by a caregiver's undue influence, our firm may be able to help.  Please feel free to call for a complementary phone consultation at (601)925-9797.