Undue influence is one of the grounds most frequently used by a disinherited heir to contest a will or living trust. It can also be used as a basis to set aside an inter vivos gift. Undue influence occurs when a person takes unfair advantage of the testator or donor by improperly persuading him to do that which he would not otherwise do if left to his own free will. Suggestions or attempts to influence are not enough to constitute undue influence. Several factors must be present to prevail in a will contest based on undue influence. The elements of undue influence are set forth in state law.
The following scenario is an example of undue influence: An elderly man hires a new caregiver. The caregiver begins to isolate him from his family. The caregiver finds an attorney and makes arrangements for him to make a new will. Related articles
dementia and wills. Subsequently, the elderly man executes a new will disinheriting his children and naming the new caregiver as sole beneficiary of his estate. Because someone with dementia or other age-related illnesses can appear to be completely in control of their finances, you may need a professional to assess whether the testator had the legal capacity to make a valid will. For example, in some circumstances it may be beneficial to have a physician provide an opinion letter or affidavit. See Letter Competent Will.
Can I Contest a Will Based on Undue Influence?
To file a lawsuit to contest a will, you must have standing. Generally speaking, this means you must be an interested person whose interests will be harmed by the probate of the will or by the will being declared invalid. If you plan to use undue influence as grounds for your lawsuit, you typically must be able to show one of the following to meet the requirement of standing:1. You are an heir of the deceased person under state intestate succession laws, meaning you would be in a position to inherit if the decedent died without a will, see dying without a will; 2. You are named in the deceased personís last will; or 3. You would inherit under the deceased personís prior will if the contested will is found to be invalid. The requirements for standing to contest a will vary according to state laws. The requirements may be different in your state.Strict deadlines apply to the filing of will contests and the probate of estates. If you wish to pursue a will contest, contact an attorney promptly, otherwise your action may be barred.
How Does Undue Influence Occur?
The circumstances surrounding cases of undue influence vary, but there is a consistent theme. They typically involve an elderly or infirm individual becoming reliant on a caregiver or another person in a relationship of confidence who subsequently takes unfair advantage of such individual. Unfortunately, undue influence frequently occurs with senior citizens who are vulnerable because their children, grandchildren, and other relatives are not involved in their daily lives. See inheritance theft.Although the victim of undue influence may be isolated from his family for reasons of geography or his familyís other responsibilities, the person seeking to exercise undue influence may also purposely isolate the elderly person. Visits with family and friends may be denied or the influencer may poison the victimís mind against his family. As this scheme progresses, the elderly individual is persuaded to change his will or living trust and name the influencer as sole beneficiary. The victim of undue influence may also be persuaded to grant power of attorney over his finances or to make generous inter vivos gifts to such person. The end result is the testatorís natural heirs or intended beneficiaries prior to the undue influence are cut out of the testatorís estate plan.Cases of undue influence are tragic, but not just because they may leave the testatorís children without an inheritance. The person who takes unfair advantage of a senior does not have the seniorís best interests in mind. The influencerís sole objective is usually to maximize the amount of money he can extract from the victim. Therefore, the influencer may try to dissuade the senior from spending money for food, utilities, clothing, and medical treatment. Many seniors have been found living in unsanitary or unsafe conditions in situations where they possessed the financial means to pay for such necessities but were subject to undue influence.Undue influence is also tragic because it may destroy a legacy the testator sought to leave behind. Under the terms of the testatorís original will, he may have left money for each of his children or grandchildren. The testator may have wanted to help his grandchildren obtain a college education or he may have planned a large donation to charity as part of his original estate plan. Nevertheless, when a person becomes dependent on the care of others, especially if the slightest mental impairment is involved, his original will may be scrapped for new will leaving everything to the person who is most involved in the testatorís life at the time.While it is possible to contest a will or set aside a gift on the grounds of undue influence, the better course of action is to get involved in your loved oneís life and prevent a person with bad motives from misusing a relationship of trust. While you can certainly hire an attorney later to wage a court battle over the estate, by then it will be too late to help the real victim of undue influence.
Proving Undue Influence
To prevail in a will contest based on undue influence, the party seeking to void the will must show all the legal elements of undue influence required under applicable state law. Undue influence cases are often difficult to prove because acts of undue influence typically occur in private when the testator is alone with the alleged influencer. If certain facts are present, state law may allow a presumption of undue influence, shifting the burden of proof to the proponent of the will. For information on the elements required to prove a case of undue influence, see our page on Proving Undue Influence.Updated on February 13, 2019.
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