Q.  I sometimes hear the term “Undue Influence” as a basis to contest a Will. What does that term mean?

A.  To say that a Will or Trust was signed as the result of “Undue Influence ” means that it was the result of excessive persuasion by someone which overcame the Will-Maker’s own free will, and which resulted in unfairness. Evidence would include the vulnerability of the victim, the influencer’s apparent authority over the victim, the pressure or tactics used, and the inequity of the result. Usually, the influencer is also a chief beneficiary of that undue influence.

The tactics can take the form of deception, harassment, threats, or isolation. The elderly and infirm are usually more susceptible to undue influence, as they are often dependent upon others for care and basic necessities.

In order to prove that a Will-Maker (aka “Testator”) was subject to undue influence when signing a will or trust, a challenger would have to show that the testator disposed of his property in a way that was unexpected under the circumstances, that he was susceptible to undue influence (because of illness, age, frailty, or a special relationship with the influencer), and that the person who exerted the influence had the opportunity to do so.  Generally, the burden of proving undue influence is upon the person challenging the Will.

However, if the alleged influencer had a fiduciary relationship with the testator, it may be easier to challenge the will:  in that situation, the burden of proving the validity of the will would be upon the fiduciary who stands to benefit under the will, rather than upon the challenger. By way of example, persons who might have a fiduciary relationship with a testator can include a child who manages the parent’s finances or an agent under a financial power of attorney.

When preparing a will or trust, it is important to avoid even the appearance of undue influence.  For example, if you were planning to leave everything to your son who is also your primary caregiver, your other children might argue that you your son took advantage of his position to unduly influence you.  In this instance, to avoid the appearance of undue influence, you should not ask your son to assist you in the preparation of your will.  He should not be present when you discuss the will with your attorney, nor when you sign it.  To be even safer, he should not even drive or accompany you to your attorney’s office.

If you are making anything other than an equal division among your children, you might also consider getting a formal assessment of your own mental capacity from a forensic psychologist or other medical professional.

In our practice, when an elderly or infirm parent wishes to make an unequal distribution of his or her estate or to disinherit a child, we often take special precautions in order to discourage a later will contest after the parent dies.  In addition to a forensic psychological evaluation, we might also videotape the signing session, during which the parent would be asked to explain why he is making an unequal division or leaving out a child. Preserving such evidence can be very effective in discouraging a later contest, but if a challenge is made, can be invaluable in defending the Will against that challenge and preserving the client’s testamentary wishes.