Undue Influence in Will Drafting
What is Undue Influence?
Undue influence refers to the pressure one person puts on another in a context that holds legal significance. Undue influence most often arises when a person is drafting a will or entering into a contract.
For example: Courts will find that a testator (a person drafting a will) was subject to undue influence if he was compelled to draft his will to comply to the wishes of another.
What Are Some Signs of Undue Influence?
A person who is exercising undue influence will often:
- Urge a change in the will's language to strongly favor himself over others
- Urge that the will be changed in secret and/or as quickly as possible
- Exclude other relatives or friends from participating in meetings with the estate planning attorney
- Participate heavily in the drafting of the will
- Have a special or confidential relationship with the person making the will
Also, a person who is subject to undue influence will often be susceptible to pressure because of a deteriorating mental state brought on by age or disease.
Who is Likely to Assert Undue Influence?
Many states have laws which automatically place a presumption of undue influence if one of the following persons inherits from the will:
- Persons who drafted or helped draft the will
- Persons who transcribed or helped transcribe the will
- Care custodians of dependent adults
- Persons who are related by blood to one of the above
- Witnesses to the will
What Are the Consequences of Undue Influence?
If a person is successful in putting undue influence on a person drafting a will, family members who inherited little or nothing will file a will contest. Furthermore, if the will contest is successful, a court will find the will invalid.
What Do the Beneficiaries Have to Show to Prove That the Testator Was Not Unduly Influenced?
Beneficiaries of a will who are accused of asserting undue influence on the testator must prove two things. First, the beneficiaries must show that the beneficiaries acted in good faith when they influenced the testator. Second, the beneficiaries must show that the testator acted freely and voluntarily. Most states require that the beneficiaries prove this through clear and convincing evidence.
Proving that undue influence was absent can be very difficult since proving the absence of something is more difficult than proving that something exists. First, the testator can help beneficiaries by explaining in their will why the estate is divided the way it is. Explanations in wills should be short and straightforward. Testators should avoid venting anger or frustration in their wills since people are likely to challenge wills which accuse them of being unworthy.
Second, some states waiver the presumption of undue influence if the testator was independently reviewed by an attorney. Independent reviews are conducted by attorneys to ascertain whether the testator was being pressured into making the will. If an attorney is drafting the will, the testator should find a different attorney to conduct the independent review.
Do I Need an Estate Planning Attorney?
If you have an undue influence problem, speak to an experienced estate planning attorney immediately. The laws involved in proving undue influence vary from state to state and can be very complex. An estate planning attorney can advise you about the problem and guide you through the legal process if you file a lawsuit.
Consult a Lawyer - Present Your Case Now!
Last Modified: 09-12-2013 12:23 PM PDT
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