Undue influence is when a person puts pressure on the testator (person making a will) or manipulates them into leaving the influencer property in their will. Undue influence is more than just persuading someone to write their will a certain way. The influence must be coercive or intimidating.
The influencer is someone with a special or confidential relationship to the testator, like a nurse, caretaker, attorney, close friend, or even a family member. The relationship between the testator and the influencer is what allows the influencer to be involved in the estate planning.
This person is already trusted and involved in controlling other parts of the testator’s life, like their finances, housing, or healthcare. They use that trust to manipulate the testator into writing a will that benefits the influencer, typically instead of close family members.
How Can I Prove Undue Influence?
Potential beneficiaries who think they should have been included in the will, or should have benefited more from the will, may contest the will based on a claim of undue influence.
They must be able to provide evidence to the probate court that the will is not the testator’s true intent. That usually means that the following facts exist:
- The will distributes the testator’s property in an unexpected way, and without a good explanation.
- The testator is someone at risk of being taken advantage of because of age, health, or mental capacity.
- The testator had a special or confidential relationship with the person who exerted the influence.
- The influencer used that relationship to pressure or manipulate the testator.
- The influencer benefitted from the will because of their influence.
What are Some Signs of Undue Influence?
There might be clues that a person has exerted undue influence over a testator. For example, the person might encourage the testator to make changes to their will in secret and without telling anyone. They might urge the testator to use language that favors the influencer over other beneficiaries.
The influencer might also take a more active role in meetings with the estate planning attorney, while excluding other friends or family members from participating. A person might even take a more active role in drafting the will, possibly by encouraging the testator to use an online will to avoid involving an estate planning attorney at all.
A person exercising undue influence may also be taking control of other areas of the testator’s life. They might take over finances and decisions on how to spend money. They might start making more day-to-day decisions and be heavily involved in the care and upkeep of the testator’s home or even move in.
All of these clues, combined with a testator who might be more easily influenced because of old age, medical conditions, or their mental state, could be signs of undue influence.
Can a Will be Invalidated as a Result of Undue Influence?
A will can be invalidated if the person challenging the will proves there was undue influence and the will does not reflect the actual intent of the testator. If, when the will was drafted, the testator was pressured or manipulated into distributing their property based on the wishes of the influencer, the will can be invalidated based on the existence of undue influence.
What Factors May Prove Undue Influence?
Determining whether there has been undue influence depends on the specific circumstances of each case. Some facts that have been considered by the courts include:
- The beneficiary was present when the will was written.
- The beneficiary recommended the attorney who drafted the will.
- The distribution of property in the will is very different than in an earlier version of the testator’s will.
- The testator was an elderly person who made dramatic changes to their will.
- The distribution of property is very different from how the testator told people they planned to distribute their property.
- The testator had a learning, language, or other mental disability.
- The witnesses to the will were arranged by the beneficiary.
- The testator left their children, or other assumed beneficiaries, out of their will without any explanation.
Who May be Liable for Undue Influence?
A person who might exert undue influence is someone with a close or special relationship to the testator. This person is someone who has the opportunity to pressure, intimidate, or manipulate the testator into writing their will or changing their will in a way that will benefit the influencer.
A person must do more than just be there when the will is written. They must actively participate in drafting the will by coercing or convincing the testator how to distribute their property.
The person who was involved in drafting the will profits or benefits from the will in a way that does not make sense under the circumstances. They would not benefit in this way unless the testator had been under their influence.
What are the Remedies Where Undue Influence is Proven?
If someone challenges a will for undue influence and proves that the will was not the true intent of the testator, then the court will usually determine that the will is not valid. If there is an earlier will that is valid, the court might use that to distribute the property. In that case, the earlier will is “revived.”
If the testator did not have an earlier and valid version of their will, all of the property in the will gets distributed based on the intestacy laws of the state where the testator lived. That means that the property will be distributed as if the testator never had a will.
The court might be able to strike out the part of the will that benefits the influencer. It would be as if that part of the will does not exist. However this is typically done when the rest of the will can still be carried out properly if the invalid portion is removed. That property will then be distributed according to the intestacy laws, and the rest of the property will be distributed according to the will.
Do I Need an Attorney to Contest a Will for Lack of Mental Competence?
Yes. Contesting a will for undue influence is complicated. Meeting with an estate planning attorney to review the facts of your situation will help you decide whether you have enough evidence to challenge the will.