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The problem of 'undue influence'

A phrase that comes up frequently in estate litigation is undue influence. It is the accusation that one party took advantage of another's frailty to defraud or steal from them.

Undue influence litigation challenges the terms of the individual's Will or other estate plans. It charges one party with manipulating the decedent to leave assets to them, instead of to the natural heirs equally - family members and loved ones equally.

Charges of undue influence may be right on, they may be completely false, or they may arise from resentment or misunderstanding. These charges are made in probate court proceedings. The burden of proof is upon the challenger, to show that the terms of the Will could not have been the decedent's wishes.

Undue influence may occur when:

  • The close family members are excluded from the Will, for no apparent reason.
  • The decedent depended heavily upon the accused.
  • The decedent was ill or incapacitated and thus susceptible to manipulation.
  • The influencer altered the Will, or influenced the decedent to alter it, to deal himself or herself in.

Undue influence is more than meddling - when one prospective heir badmouths other prospective heirs, to benefit themselves. While obnoxious, such actions are considered to be mere opinions. Undue influence requires that the Will-maker be unable to make reasonable judgments, and the influencer takes advantage of this frailty.

The person charged with undue influence doesn't have to be "a bad person." It can be a relative who becomes caregiver to the Will-maker when that person becomes sick or mentally enfeebled. This person may feel entitled to manipulate the will-maker to alter the will in his or her favor. A tip-off is when the caregiver suggests a different lawyer to make changes to the will.

Undue influence is not an easy charge to prove. It is usually only proven by circumstantial evidence. Very often it is simply not true. People nearing death often do make changes to their will. It is a good idea, when a change like this is made, to inform family members at the time so it does not come as a shock later. Hiding the change can reflect badly on the caregiver that benefits from it.

Lastly, it may not just be the Will that is changed or leaves most, if not all assets, to the interloper/Will-maker, but changes in the ownership or title to bank account, brokerage accounts, life insurance beneficiary, IRA beneficiary designations and other designations involving changing bank accounts into joint names or P.O.D. (payable on death) monies.

At Bashian & Farber, we deal every day with conflicts that arise in the Probate process and Estate Planning. Undue influence is just one of these issues.

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