How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Christopher B, Esq Your Own Question
Christopher B, Esq
Christopher B, Esq, Attorney
Category: Estate Law
Satisfied Customers: 2943
Experience:  Litigation Attorney with education focus on estate planning and tax
84496330
Type Your Estate Law Question Here...
Christopher B, Esq is online now
A new question is answered every 9 seconds

Our sister had my 85 yo mom co sign on a 300k personal loan

Customer Question

Our sister had my 85 yo mom co sign on a 300k personal loan amortized for 20 years and my mom's house was used as collateral. My sister couldn't make the payments and my mom died, leaving her estate to pay the debt. Do we have any recourse with the bank for allowing such a loan
Submitted: 1 year ago.
Category: Estate Law
Expert:  Christopher B, Esq replied 1 year ago.

My name is***** and I will be helping you with your question today. This is for informational purposes only and does not establish an attorney client relationship.

Unfortunately no. As long as your mother was of sound mind and competent to sign a contract, there was no fraud or duress on the part of the agreement or undue influence on the part of your sister. If your mother was incompetent at the time then she could not have signed for the personal loan and it would be held to be invalid.

Four elements must be shown to establish undue influence. First, it must be demonstrated that the victim was susceptible to overreaching. Such conditions as mental, psychological, or physical disability or dependency may be used to show susceptibility. Second, there must be an opportunity for exercising undue influence. Typically, this opportunity arises through a confidential relationship. Courts have found opportunity for undue influence in confidential relationships between husband and wife, fiancé and fiancée, parent and child, trustee and beneficiary, administrator and legatee, guardian and ward, attorney and client, doctor and patient, and pastor and parishioner. Third, there must be evidence that the defendant was inclined to exercise undue influence over the victim. Defendants who aggressively initiate a transaction, insulate a relationship from outside supervision, or discourage a weaker party from seeking independent advice may be attempting to exercise undue influence. Fourth, the record must reveal an unnatural or suspicious transaction. Courts are wary, for example, of testators who make abrupt changes in their last will and testament after being diagnosed with a terminal illness or being declared incompetent, especially if the changes are made at the behest of a beneficiary who stands to benefit from the new or revised testamentary disposition.

Nevertheless, courts will examine the facts closely before finding that a transaction has been tainted by undue influence. Mere suspicion, surmise, or conjecture of overreaching is insufficient. The law permits loved ones and confidants to advise and comfort those in need of their support without fear of litigation. Courts are also aware that the doctrine of undue influence can be used as a sword by the vindictive and avaricious who seek to invalidate a perfectly legal transaction for personal gain. When undue influence is found to have altered a transaction, however, courts will make every effort to return the parties to the same position they would have occupied had the overreaching not occurred.

It will be difficult to overturn a transaction such as this and almost impossible for the bank unless you can prove some sort of implicit fraud. Your focus should be on the sister and what type of behavior caused your mother to complete this transaction.

Please let me know if you have any further questions and please positively rate my answer as it is the only way I will compensated from the site. (There should be smiley faces or numbers from 1-5 next to my answer, an excellent or good rating would be fantastic.)

Expert:  Christopher B, Esq replied 1 year ago.
I see you have reviewed my answer, please let me know if you have any further questions and please positively rate my answer if satisfied.

Related Estate Law Questions