Undue Influence – Will Contest

Undue Influence:  The use of undue influence on a testator is a major cause of a subsequent will contest.   Elderly individuals, who live alone and lack caring friends and family nearby, are particulary susceptible to undue influence by someone who is less than ethical and motivated by money and greed.

If there is a fiduciary relationship between the elderly or susceptible individual and the beneficiary, such as an agent under a Power of Attorney,  there is a presumption of undue influence, and the beneficiary must establish that he/she did not exert undue influence upon the testator in the creation and execution of the estate plan.

Factors to consider when evaluating a case involving undue influence:

  • Whether the person has established a great deal of trust and confidence with the testator;
  • If the person has payed a significant role in getting the will prepared and executed (for example, takes the testator to his/her own attorney, participates in discussions)
  • Whether the person has managed to reap benefits from the estate plan, and is treated very generously by the testator, often to the detriment of others.

Undue influence is any improper persuasion, resulting in the overpowering of the free will of another, inducing him or her to do, or not do, something which would not occur if the person were left to act freely.

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