Probate Practice and Procedure

CHAPTER 33-19.1
Financial Exploitation of Elders and Dependent Persons Act

SECTION 33-19.1-3

§ 33-19.1-3. Prohibited transaction.

(a) A provision of any document or instrument, including commercial instruments as defined in title 6A, making a donative transfer to any of the following persons is presumed to be the product of fraud or undue influence:

(1) The person who drafted the instrument;

(2) A person in a fiduciary relationship with the transferor who transcribed the instrument or caused it to be transcribed;

(3) A care custodian of a transferor who is a dependent adult, but only if the instrument was executed during the period in which the care custodian provided services to the transferor, or within ninety (90) days before or after that period;

(4) A person who is related by blood or affinity, within the third degree, to any person described in subsections (a)(1) – (a)(3).

(5) A cohabitant or employee of any person described in subsections (a)(1) – (a)(3); or

(6) A partner, shareholder, or employee of a law firm in which a person described in subsections (a)(1) – (a)(2) has an ownership interest.

(b) The presumption created by this section is a presumption affecting the burden of proof. The presumption may be rebutted by proving, by clear and convincing evidence, that the donative transfer was not the product of fraud or undue influence.

(c) Notwithstanding the provisions of subsections (a)(1) – (a)(2), and with respect to a donative transfer to the person who drafted the donative instrument, or to a person who is related to, or associated with, the drafter as described in subsections (a)(4) – (a)(6), the presumption created by this section is conclusive.

(d) If a beneficiary is unsuccessful in rebutting the presumption, the beneficiary shall bear all costs of the proceeding, including reasonable attorney's fees.

History of Section.
(P.L. 2014, ch. 491, § 1.)