Using Undue Influence in Estate Planning to Contest a Will

June 9, 2020

In order to best explain claims of undue influence, it’s often helpful to set the scene a little. That can help with grasping the concept.

Often during the final years of a friend’s or relative’s life, somebody will take over the task of caring for them to a greater degree than the other people in their lives. This is sometimes due to the simple fact that the aged or sick person lives nearer to a particular friend or relative than to others. In addition, some relatives or friends may be better suited to dealing with the realities of sickness, age and dying than others. There are some people who do not have the temperament to be care givers for those they love dearly, because they cannot bear to see a parent decay and succumb to age and death, particularly if the process is prolonged.

Those who are elderly, sick and in need often attempt to show their gratitude for the care that they are being given through bequests in their will. It seems only fair that the relative who is actually caring for their loved one should be rewarded by the one who is being cared for. However, there is the potential that the other heirs want an equal share of the bequest regardless of who took care of whom in the final days of a person’s life. Sometimes, for no other reason than that they want to feel that they were loved equally and view an equal share of the will as a demonstration of that.

When this happens, a common means of contesting a will is employed that involves a claim of undue influence. This claim is often grounded in the idea that a relative exercised an extreme amount of coercive ability with respect to the deceased person. It must be true that the person who is claimed to have undue influence also received an ‘undue benefit.’

Claims of undue Influence are often combined with claims of a lack of capacity in one form or the other. The less forceful the waning personality of the deceased becomes in the eyes of the courts, the easier it is to establish the dominance that the undue influencer had over that person. After all, it is difficult to say that a strong, healthy, fully cognizant adult was duped by his/her insidious caregiver.

Of course, there are people who try to take advantage of those whom they care for, but there are a great many claims of undue influence raised by those that simply didn’t pay attention to their elderly loved ones, yet expect an equal share of a bequest.

Another interesting facet of undue influence claims is that they can involve the degenerated mental state of the will maker without relating that state to the property or to whom it goes. Part of the undue influence claim is showing that the person being influenced was unable to think clearly and that the person doing the influencing used that to their advantage. This is unfortunate, because the elderly often become more absent minded or less mentally acute than they once were, and yet they may still be attempting to reward a relative who has come to their aid when it mattered to them the most.

Undue Influence is also shown by proving an opportunity to exercise such influence. In one case a test of “psychological domination” was used to prove undue influence. But, the central question is always whether an unwarranted coercive force or ability existed and was exercised. This is problematic, in that there may be one child or relative whose advice really is important to the will maker, but that fact is not attendant to undue influence so much as a general respect for that person’s counsel.

Undue influence is a complicated claim. For more information on how to avoid a claim or take a claim, speak to an experienced estate planning attorney.

How Can We Help You?

For more information on estate planning, read some of the other articles on this website.

You can also check out our book Estate Planning Essentials. It introduces you to estate planning and shows you how you can make an effective estate plan quickly and easily without the need for a lawyer. You’ll learn about estate planning devices such as wills, trusts, powers of attorney, medical directives, probate avoidance methods and more. To help you get a fuller understanding, particular attention is paid throughout to beneficiaries, children, disinheritance, incapacity, estate taxes and inheritance taxes. If you want to prepare an estate plan, this book is for you.

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William Anderson

William is a personal finance journalist and writes on matters affecting people and their finances.

William Anderson


William is a personal finance journalist and writes on matters affecting people and their finances.

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