The legal term “undue influence” refers to a level of influence brought to bear on an individual by another person. Undue influence consists of that amount of influence that causes an individual to act other than by their own free will or choice. In the context of a will, undue influence can be exerted on a “testator” — a person who creates a will.

What is Testamentary Capacity?

For a will to be valid, certain legal requirements must be met. One such requirement is known as testamentary capacity. A testator  (the person who creates the will) must:

  • Understand the nature of the act (i.e., must understand that a will is being created);
  • Have knowledge of the nature and approximate value of the property being willed;
  • Know who his family members and loved ones are; and
  • Must understand the bequest the person is making (i.e., the person must understand that the person is bequeathing property to another, under a will).

To have testamentary capacity with respect to a specific piece of property, the testator must be of sound mind and judgment. They must also have this knowledge and understanding at the time the testator is distributing the property. 

When will a Court Find Undue Influence?

A court will find undue influence when it can be shown the testator has testamentary capacity, but was subject to, and controlled by, a dominant influence of power. The burden of proving undue influence is on the person asserting it. That person is referred to as a “will contestant.”

In a will contest, to prove undue influence, the will contestant must generally show:

  • The existence of an influence, the effect of which is to overpower the mind of the testator; and
  • The product of that overpowering is a will, or a gift in the will, that would not have been made, but for the undue influence.

Note that influence is not undue unless the free agency of the testator was destroyed. This means that  the will produced was essentially a will not of the testator, but of the person exerting the influence.

What is Considered Evidence of Undue Influence?

Undue influence is usually proven by “circumstantial evidence.” One may infer or conclude, after consideration of all of the relevant facts and circumstances, that undue influence was brought to bear.

A will contestant can demonstrate a presumption of undue influence if:

  • A will makes a gift to an individual with whom the testator has a confidential relationship; and
  • That person was active in preparing the will.

The person who is alleged to have asserted undue influence may contest this presumption by offering admissible evidence against the presumption. Such evidence may include, for example, lack of opportunity or motive to exert the undue influence. 

Undue influence may also be found to exist when certain other circumstances are present. These may include:

  • The person urged a change in the will’s language to strongly favor that person over others; or
  • The person attempted to exclude relatives and friends from participating in meetings with the testator’s estate planning attorney.

What is NOT Considered Evidence of Undue Influence?

The following situations alone, by themselves, are generally not enough to create a presumption of undue influence:

  • Mere opportunity to exert influence: Opportunity to exert influence exists when, for example, a child who receives the largest share of a parent’s estate lived with that parent, wrote checks for the parent, helped that parent with income tax returns, and held a power of attorney. While these facts demonstrate opportunity, the facts, by themselves, are not actual proof that the child took advantage of the opportunity to influence the parent; 
  • The mere fact of old age or illness: If the parent in the above scenario was aged, had a medical condition, or was taking medication for depression, these facts alone would not suffice to prove a presumption of undue influence; 
  • The distribution to children is uneven: The mere fact that some children receive more under a will than do others, by itself, is not enough evidence of undue influence.

A will contestant who claims undue influence must offer proof in a will contest proceeding. The person alleged to have exerted the undue influence may, in the contest, offer their own evidence. If the court finds undue influence was exerted, the court may invalidate the will.

Do I Need a Lawyer for Help with Proving Undue Influence?

If you suspect an individual exerted undue influence in the drafting of a will under which you had an interest, or were an interested party (i.e., a family member), you should consult with a will attorney. This type of lawyer is often also known as an estate lawyer or probate lawyer. 

The lawyer can assist you by explaining the law related to undue influence, and by representing you in a will contest proceeding.