Undue Influence in Will Drafting

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 What is Undue Influence in Will Drafting?

When making their will, elderly or ill people are sometimes taken advantage of by those close to them, who manipulate them into cutting out close family members and leaving assets to the influencer instead. This is called “undue influence,” and if it’s proven in court, a will can be declared invalid.

Undue influence is the amount of influence that causes an individual to act without free will or real choice, perhaps even against their best interests. In the context of a will, undue influence can be exerted on a “testator” — a person who creates a will.

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

What is Testamentary Capacity?

When a person dies, their will must be proven in court during probate. During that time, beneficiaries or relatives can challenge or contest the will if they do not believe they received a fair portion of the estate. Some common reasons to contest the will include:

  • Undue influence (someone coerced the testator to write the will)
  • The decedent could not write the will

For a will to be valid, certain legal requirements must be met. One 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)
  • Know the nature and approximate value of the property being willed
  • Know who his family members, friends, and loved ones are
  • Must understand that they are making a testamentary gift (a bequest) of that property to another person and who that person is. They must have this knowledge and understanding when the testator writes or signs the will.

The testator must be of “sound mind and judgment.” This means that the testator was not suffering from a mental disorder that affected their ability to understand the nature of making a will.

When Will a Court Find Undue Influence?

A court will find undue influence when it can be shown that the testator has testamentary capacity but was subject to and controlled by someone else’s dominant power influence. The burden of proving undue influence is on the person claiming it existed. 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 overcome. This means that the will or gift produced was essentially a will or gift not of the testator, but of the person who exerted the influence.

What is Considered Evidence of Undue Influence?

To win a lawsuit charging that a will was written under undue influence, the person bringing the lawsuit must usually prove that:

  • The will left property in a way that was not what would be expected—for example, family members that the testator was close to did not inherit
  • A “confidential relationship” existed between the testator and the person who exerted influence. Commonly, this includes people who can control a vulnerable person’s living situation or finances. This could be a caretaker, a relative, or a lawyer
  • The testator was susceptible to undue influence. Often, allegations of undue influence go hand in hand with charges that the person lacked the testamentary capacity to make a valid will
  • The influencer took advantage of the testator and benefited from the will

These factors suggest a situation where a vulnerable person has been taken advantage of. It’s common that the testator is elderly and frail and may be suffering from some mild dementia, but that’s not always the case. People of any age can be susceptible to improper influence because of physical or mental illness or emotions such as fear.

Undue influence may also 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
  • The person attempted to exclude relatives and friends from participating in meetings with the testator’s estate planning attorney or, in other ways, attempted to exclude relatives and friends from participating in the drafting of the will

The court will consider a range of evidence in deciding whether undue influence, including:

  • Former wills
  • Evidence of the deceased person’s state of mind at the time of making the will
  • Evidence of the deceased person’s susceptibility to undue influence
  • Sometimes, prior declarations of the deceased person are inconsistent with the will.

This might include testimony from those who knew the deceased person well, such as close family members and friends, as well as from healthcare providers and lawyers.

What is NOT Considered Evidence of Undue Influence?

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 a lack of opportunity or motive to exert 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 exists when, for example, an adult son or daughter of the testator 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 evidence 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 support 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.

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

It can be difficult to prove undue influence because it’s very difficult to know what someone no longer around was thinking when they made their will. Ultimately, a judge must decide, based on the testimony of witnesses, whether or not someone exerted improper influence. Courts often hear from doctors, relatives, caregivers, lawyers, and anyone else who knows the relationship between the deceased testator and the alleged influencer.

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 undue influence law and representing you in a will contest proceeding.


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