When we think of “Undue Influence”, we think of contested wills, families divided and older, vulnerable people exploited by self-interested relatives. Declaring undue influence is often used as a reason to contest a will or estate plan, but there are two ways to consider undue influence in estate planning.
If you’re the one drafting a will or estate plan, it’s important to avoid any ambiguity about your estate planning decisions and who may have influenced them. When you distribute an inheritance in a way that’s uneven, questions of undue influence may be raised, especially if the main beneficiaries of the inheritance are involved in the estate planning process to the exclusion of the others. Things you can do to ensure that your wishes appear crystal clear to others and free of undue influence include getting a formal assessment of your mental capabilities before you draft estate planning documents and making sure family members aren’t present at discussions about your will with your attorney. This last step may need to be so clear-cut that you should avoid being driven or accompanied to your attorney’s office by a family member or loved one benefiting from your will.
If you are a family member that suspects undue influence, there are three things you need to be able to prove: firstly, that the affected family member or loved one was acting in an unusual way when he or she allotted property in the estate plan, secondly that the loved one or family member was frail, old, mentally incapable or in some way vulnerable to influence, and thirdly that the person who is alleged to have been the influencer had the opportunity to do so. In general the burden of proof in this situation is on the person or people who are asserting undue influence. Sometimes it works the other way, for example if the alleged influencer had a fiduciary relationship with the relative or loved one. This could include a child, spouse or agent under a power of attorney.
Some signs of undue influence include evidence of coercion or harassment, and also attempts to isolate the loved one or relative from other family members or friends.
If you suspect undue influence or want to protect a will from being contested on grounds of undue influence, contact Attorney Sheryl Dennis. Attorney Dennis is highly experienced in the areas of estate planning and elder law. She can help you draft a will in which your wishes are clearly outlined or discuss with you the best way to challenge suspected undue influence. Please contact Fields, Dennis & Cooper today, to see how Attorney Dennis can help.