What Is Undue Influence over Making a Will?

There is no way around it; undue influence is an instance of elder abuse. If someone forces their influence on a sick or older person who is creating a will, this is committing fraud and theft, taking away an inheritance from the will-maker's relatives and giving them to the perpetrator. What makes these fraudulent wills tricky is that relatives may not be aware of this document until their loved one has already passed away. This fake will is not set in stone, however, and there is a way to fight against this crime. If a family can prove to a probate judge that someone exerted undue influence over the will-maker and that the will-maker did not simply have a change of heart, then the judge could render that will invalid. The same goes for any paper involved in estate planning.

If you suspect foul play in the will, then you contest it in probate court. You will have to establish that the property is passed down in a strange manner, that relatives are not inheriting, and there is no clear and legitimate reason as to why this would be. Secondly, if you want to contest this will you would have to prove that the will-maker was vulnerable, that he or she was sickly or weak. You would also have to demonstrate that the will-maker was heavily dependent on, or had a "confidential relationship" with the person who held this influence. Finally, you would have to prove that the culprit gained from the will, putting in their own wishes and not that of the will-maker.

It is important to be aware that there are many things that undue influence is not. For example, if you have an aunt always visiting your mother who yacks on about her children (you and siblings) do not deserve to inherit, this could influence your mother's will, but it is not undue influence. If your mother has the mental and physical capability to make her own choice, then this is just your aunt blurting out what was never asked for. But if your mother's health was deteriorating, or even was suffering the onset of dementia, then things could be different. Perhaps at that point, your aunt started living with your mother to care for her. Let us say she went ahead and tried to turn your mother against you, coaxed her to work with the lawyer that she picked out, and then facilitates the creation of an entirely new will, a will where her name is put down instead of yours. In this instance then, you could have a strong reason to contest the will.

Undue influence could come from a caretaker, a relative, or even an attorney. Even though this undue influence occurs, it can be a feat for a family to win their undue influence lawsuit. As the will-maker cannot testify on their own behalf, it will rest on the testimony of other witnesses to establish undue influence.

If you are creating a will and are afraid that it could be challenged by an undue influence lawsuit, then you should let your family know now about your estate plan. You will then have the opportunity to give your reasoning behind the will as well. If you think that a relative is being financially exploited by someone, then do not wait to put an end to it now.

Whether you need to create a will that will not lead to complications, or whether you need to contest a will, to not be without the help of a legal expert. Contact a probate lawyer today!