What Is Undue Influence In Estate Planning?
The great thing about proper estate planning is that it can keep you out of probate court. But you also often hear about probate fights—family fighting each other over what a deceased’s will or trust said.
But how can this be? If the deceased left a will or trust that definitively said XY or Z, how is it that there can still be fighting over the clearly written intentions of these estate documents?
What is Undue Influence?
The answer is in what is known as undue influence. Undue influence is where there is the suspicion that someone influenced the deceased in the creation or amending of an estate document. Undue influence often is only discovered when friends or family expect an inheritance, but lo and behold, the inheritance ends up going in full or in part to someone else.
Of course, many people may influence how we write our estate documents—that part isn’t a problem. The problem comes when the influence is abused, or when it becomes so much influence, that the (now deceased) person creating or altering the will, really didn’t have a choice, or didn’t understand what he or she was doing.
Proving Undue Influence
Undue influence usually happens when there are four factors involved:
- The person making or altering the estate document is or was not able to fully comprehend what he or she is doing, or else, is or was very reliant on the person exerting the influence.
- The person exerting the influence, holds a position of trust, influence or power over the other person. This may be a professional position, like an accountant, financial advisor or other professional, but it doesn’t have to be—even just a helper can exert the influence, so long as the deceased trusted and relied on the advisor. This person may have slowly started taking over important parts of the deceased’s life–especially as the deceased got older and older.
- The person of influence had some say, or some hand, or some participation in the creation or alteration of the estate documents. This person must have exerted some kind of pressure, such to the extent that the other person really didn’t utilize free will in making or changing a will or trust.
- The person exerting the influence of course received something more than what he or she would have received, in the absence of the influence.
Proving Undue Influence Can be Tough
Proving undue influence can be difficult, because the estate documents themselves look fine, so on the surface, there is nothing abnormal about them (other than to the family members who feel deprived of the inheritance).
The other problem is, of course, that the person who may have been influenced, is now deceased. That means that family challenging the will or trust needs to show that someone who is no longer here, was unduly pressured when creating the estate documents.
Expert witnesses are often employed, to analyze the deceased’s condition before death, and lay witnesses can also testify as to any pressure that they observed the “influencer” placing on the deceased.
Draft an estate plan that works for you, and that won’t be challenged later on. Call the Torrance will and estate attorneys at Samuel Ford Law today for help drafting your estate plan.
Sources:
drstaceywood.com/undue-influence-california/
courts.ca.gov/documents/UndueInfluence.pdf
