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. In many cases, the influencer has a special relationship with the testator, which creates a better opportunity to have a more active participation in drafting the will. These special relationships can range from nurse, caretaker, attorney, agent, and even close family members.

The general factor that the courts look at when determining whether undue influence existed is the testator’s intent. If the transfer of the testators assets were not natural and were not consistent with prior statements of intent and the challenger proves this by providing clear and convincing evidence that the influencer was in a position to the opportunity to take the vulnerable testators assets, then the Will would be held invalid.

How Can I Prove Undue Influence?

In a will contest, the person challenging the will’s validity has the burden to prove that there was an existence of undue influence and the will is not the testators actual intent. The elements that are usually present in a case of undue influence are:

  • An unnatural disposition of testators property has been made
  • By a person susceptible to undue influence to the advantage of someone
  • This person had the opportunity to exercise undue influence
  • Who use this available opportunity to make an improper disposition through improper means

If a third party has taken the person who made the will or trust advantage of anyway, potential beneficiaries who believe that they have property rights under the will may bring a claim challenging the validity of the will and whether the will is legally enforceable. For instance, if a will includes beneficiaries who would not normally be considered likely heirs but who had the opportunity to exert pressure to get included, then this may be a case of “undue influence.”  A general influence over the individual is not sufficient to invalidate a will if there is no indication that the resulting disbursements are not unusual or unexpected.

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

Can a Will Be Invalidated as a Result of Undue Influence?

A will can be invalidated if the wishes of the testator (the individual making the will) were changed as a result of the influence of an outside party. If, while in the process of drafting a will, an outside party exerts influence over the individual in such a way that affects the actual disbursements in the will, then this may be considered “undue influence” and invalidate the will.

Undue influence may not be detected until the testator of the will has died since the influencer usually has the motivation to change the will in his or her favor during the final days of the testator’s life.

What Factors May Prove Undue Influence?

Courts have often considered certain factors to determine whether there has been undue influence:

  • Presence of the beneficiary when the will was executed
  • Presence of the beneficiary when the testator discusses his or her intentions
  • Recommendation by the beneficiary of an attorney to draft the will
  • Knowledge by the beneficiary of the contents of the will
  • Instructions made to the attorney by the beneficiary
  • Securing of witnesses for the will by the beneficiary
  • Possession of the will by the beneficiary after its execution
  • Whether the transfer of the testators property were consistent with prior statements of intent

Determining whether influence has been significant enough to invalidate a will depends on the specific circumstances and courts have been given a great deal of latitude in their determinations.

Who May Be Liable for Undue Influence?

A person who is exercising undue influence will often be someone who has a special relationship to the testator and had the opportunity to make the testator weak and influenced either through words of threat, duress, coercion. A testator who is living his or her last days is someone who is usually weak and vulnerable and can be easily manipulated and influenced by someone of sound mind.

Some common influencers in estate planning may be:

  1. Someone who has a confidential relationship: The testator and influencer may have a confidential relationship. The confidential relationship exists whenever trust and confidence are placed by one person (usually the testator) into the influencer. A blood relationship may not be necessary to prove that confidential relationship exists.
  2. Active Participation: The person who may be liable for undue influence must have an actual active participation in the drafting of the will. Active participation does not exists when the person is just there when the testator is drafting the will, but the person must actually urge, assist, and be involved in the execution of the will.
  3. Undue Profit: One who assisted the testator in drafting of the will usually receive a undue profit from the will. The profit or gain is usually an unnatural disposition that the testator would not do if he was not influenced.

What Are the Remedies Where Undue Influence If Proven?

When the person challenging the validity of the will proves all the elements that the will was influenced by undue influence and the will is not the true intention of the testator disposition, the court will usually conclude that the will or trust is invalid. When the will is invalid, all the property and assets that were within the will would go to intestate succession. There are certain instances where the courts will only void the gifts that would go to the influencer by striking it out of the will without invalidating the entire would. The gifts that were supposedly going to the influencer would then go to intestate succession and the remaining Will would go to the persons named in the will

Do I Need an Attorney to Contest a Will for Lack of Mental Competence?

Evaluating the possible effects of undue influence is a complicated process that is open to much interpretation. An initial review of the circumstances by an attorney will help evaluate the likelihood of a successful will contest for undue influence. If you are having doubts whether your family member or parent really intended to leave you out of their will or want to bring a claim to challenge the validity of the will, do not delay and speak to an estate planning attorney.