The Effect of Undue Influence on Wills
One of the reasons that a will may be challenged in court is that someone had undue influence on the person signing the will. If this is successfully proven, then the will may be found invalid. Here is some helpful information on what the term “undue influence” means and how to avoid it in the course of estate planning.
What Is Undue Influence?
Undue influence is when someone is in a position where he or she is able to take advantage of the person signing the will. Usually, this person is in a position where he or she has some type of authority over the testator. It could be that the person exerting the influence is the primary caregiver who sees the testator at all hours of the day. Alternatively, the influence could be that of a caregiver who is not part of the family. Usually, the undue influence comes from the fact that the person with some sort of power prevails on the individual signing his or her will to leave the influencer more property than he or she otherwise would have.
Generally, undue influence cases involve facts where there is a senior who is frail and/or ill. In many instances, there is declining mental capacity brought about by some form of dementia. Alternatively, the will could reflect the fact that the person exerting the undue influence had some form of leverage when it came to the will.
What Are the Consequences of Undue Influence?
When a person dies and his or her will is opened, other family members may have a suspicion of undue influence if the assets are distributed in an unexpected or a counterintuitive manner. The consequence is that the will can be challenged in court as invalid. Then, the court will need to hold a hearing, during which evidence will be presented about the facts and the circumstances that led to the signing of the will. An estate planning lawyer will be needed to defend the will if necessary. If you are in the position of challenging the will, the services of an estate planning lawyer will be helpful.
How to Avoid Undue Influence
Once your family member has passed away, it is usually too late to avoid a charge of undue influence. The best thing to do is to take action about the situation when the person is still alive. This means communicating to the family about the contents of the will. If it is your will, you will want to make sure that its provisions are no surprise to your family once you have passed. This will allow for conversations about any issues before the will can be challenged.
If the will belongs to a family member, you can go to court if you are concerned that your loved one is being taken advantage of by someone else. In those cases, you can get the court to appoint a guardian who will then be able to make the appropriate financial decisions. The key is taking action before the person with undue influence has the ability to persuade your family member to change a will in his or her favor.
How to Prove Undue Influence
If you suspect undue influence, it will be difficult to prove during litigation because in most cases, the person signing the will cannot come into court to testify. You will have to prove this circumstantially, starting with the fact that there was an unusual distribution made. Then, you will have to show what influence the person had and the nature of his or her relationship. Again, you will have to fill in many blanks using the testimony of others because you will not be able to hear about it from the perspective of the person whose will is at issue.
The Knee Law Firm has an estate planning lawyer who can help you with issues of undue influence whether it is avoiding it or proving that your loved one was under the influence of someone else when signing his or her will. To set up a consultation for your family in Hackensack, call us today at (201) 996-1200.