What Is Undue Influence And How Might It Impact An Estate Plan?
By: Randall A. Denha, J.D., LL.M.
Undue influence occurs when someone exerts pressure on an individual, causing that individual to act contrary to his wishes and to the benefit of the influencer. For those not up on their legal jargon, “undue influence” essentially means one person taking advantage of another, typically for financial gain. The pressure can take the form of deception, harassment, threats or isolation. Often, the influencer separates the individual from his or her loved ones in order to create a sense of dependency, so that the individual begins to see the influencer as being the only one he has, and therefore the only one to whom he should leave his assets upon his death. Elderly individuals, individuals with disabilities, and individuals suffering from a form of dementia can be very susceptible to undue influence.
The “influencer” can be a person inside or outside the family. Sometimes, a child may convince his or her parent to leave another child out of the Will or to leave that other child less of the estate. The child assisting his or her parents with their estate plan may not have any malicious motives: perhaps he or she simply thinks that their sibling would not manage the assets well.
If someone suspects that his loved one was subjected to undue influence that caused the loved one to make drastic changes to his estate plan (most commonly his will), then that individual can contest the will or trust once it has been admitted to probate, if applicable. The court will consider certain factors when determining whether undue influence was actually present. Generally, the burden of proving undue influence is on the person asserting undue influence. If the alleged influencer had a fiduciary relationship with your loved one, however, the burden may be on the influencer to prove that there was no undue influence.
Most of the area in this body of law has been constructed from case law and not from a specific state statute. For example, this is the case in Michigan. As a colleague once stated, “in other words, undue influence is unfair persuasion or coercion — including extreme pressure or threats — that overcomes the free will of an individual making a decision and replaces that individual’s will and wishes with the will and desires of the person exerting the undue influence. A determination of whether undue influence occurred is based on the total circumstances surrounding a decision, rather than on one specific fact.”
In assessing a claim of undue influence, courts consider a number of factors. But for our purposes, we have narrowed them down to four main indicators you can use to determine whether undue influence might exist:
- Look for unexpected gifts.
Courts often look at whether the testator disposed of his or her property in an unexpected way. The question is sometimes phrased like this: Did the testator leave his estate to anyone who was not the natural object of his or her bounty? For instance, if a woman was close with her three children, the fact that her Will leaves her entire estate to a caretaker looks suspicious. After all, one would expect the woman to leave most (if not all) of her estate to her children.
- Examine the testator’s mental/physical state.
Courts often consider the age and health of the testator in analyzing undue influence claims. Frailty, deteriorating mental state, and other mental or physical factors could make a loved one susceptible to undue influence. Although undue influence is different than a claim of “lack of capacity,” the same evidence is often relevant for both claims.
- Consider whether the testator was isolated.
Third, determine whether the testator was isolated from other family or friends. An influencer often tries to separate the testator from his or her loved ones so he or she will become dependent on the influencer. The testator may see the influencer as the only person that cares about him or her and thus believes it would be proper to leave the influencer their estate. Elderly people, disabled individuals, and individuals with mental ailments may be especially susceptible to undue influence on account of their isolation or separation from other relations.
- Scrutinize special relationships.
Lastly, look at whether there is a “special relationship” in the testator’s life. A caretaker is simply one example. Perhaps a neighbor spends a lot of time with your father and helps him with chores and other tasks. Or perhaps one child spends much more time with parents than another. A “special relationship,” by itself, does not indicate undue influence. There must be some action on the part of the influencer to show that he or she unduly influenced the testator. Did she drive your father to his appointment with the estate planning attorney? Was she present when your father signed his Will? All these facts could indicate that the influencer utilized the “special relationship” to his or her unfair advantage.
Generally, the burden of proving undue influence is on the person claiming such influence. The will is assumed valid unless the plaintiff can clearly establish the undue influence. However, if the alleged influencer had a fiduciary relationship with your loved one, the burden may be on the influencer to prove that there was no undue influence. People who have a fiduciary relationship can include a child, a spouse, or an agent under a power of attorney.
The important thing to keep in mind when drawing up a will or an estate plan is to avoid anything that will give even the appearance of undue influence. For example, if an individual is planning on leaving everything to his daughter who is also his primary caregiver, his other children may argue that this daughter took advantage of her position to influence the parent in a time of relative weakness.
To avoid the appearance of undue influence, do not involve family members in drafting a will. Family members should also not be present when discussions pertaining to the will are taking place with the attorney. An attorney should request that all family members leave the room before going over the contents of a will with the client, to ensure that the contents of the will are the sole desire of the Testator and not a result of pressure from outside sources. You should also make sure that the attorney keeps a clear record of your wishes, so that if a claim of undue influence is brought after your passing, you can ensure that your estate is distributed according to your wishes.
