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Undue Influence in Will Drafting

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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. 

How Can the Beneficiaries Have Prove That the Testator Was Not Unduly Influenced?

The certain elements that must be proved in order to determine undue influence are:

  1. Unnatural disposition has been made: The gift that was made was unusual and not naturally foreseeable. Usually this will be suspected by other members of the will that shows the testator would not intend to give the wrongdoer a gift unless there was some kind of influence.
  2. Testator was susceptible to undue influence to the advantage of someone: The testator was isolated or vulnerable and as a result was influenced of the wrongdoer.
  3. The wrongdoer had opportunity to exercise undue influence.
  4. The wrongdoer in fact has used that opportunity to procure the contested disposition through improper or fraudulent means.

Courts also look at the special relationship or fiduciary relationship between the wrongdoer and testator and whether the person abused his/her position to the testator’s disadvantage. For example, if an attorney drafted a will and used his position as a fiduciary in influenced the testator to be named as a beneficiary in the will. If the beneficiaries can show that there is a presumption of undue influence by a person, that person has the burden to rebut the presumption and if he/she fails to rebut the presumption, their share in the will would be invalid.

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.  

Photo of page author Kourosh Akhbari

, LegalMatch Legal Writer

Last Modified: 04-24-2018 08:26 PM PDT

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