What is Undue Influence?
We’ve all heard stories about the nightmares that families go through when someone is intentionally and negatively influencing the decisions of a testator (the person whose will is in question). Particularly, senior citizens without close, trusted family members to care for them could become victims of manipulation by those they rely on – leading all, or a disproportionate amount of money, to one person outside of the family or even within the family but to the detriment of others.
Although we all influence one another to some extent, the legal terminology ‘undue influence’ is used to describe the act of taking unfair advantage of another’s intent (the testator) and exerting pressure until the estate is written in their favor. This is often made easier if the testator is not of sound mental or physical health, or if family members are not close enough to participate in regular care. Being a distance away can result in the testator being isolated from the rest of the family.
Becoming Aware of Undue Influence
Take this example: John owned a logging company for 36 years before retiring. Having lost his wife years before, he worked long hours to ensure that his three children would be provided for financially, and his long hours paid off. He was able to purchase a beautiful lakefront property in the sought-after summer village of Saratoga. He enjoyed his summers with his children at the lake house, acquiring it as his youngest entered her teenage years. Before too long, though, his children graduated and found careers in other states, visiting as often as they could with young families of their own.
When John got older and was having a difficult time getting around to care for himself, his children consulted with John’s doctors about how best to support their father and ensure that he continue to be able to spend time where he felt best – at the lake house. The children made arrangements from out-of-state to have a full-time health care aide support their father and ensure that his needs were met in their absence.
The first year with the health care aide went well for the whole family. John was happy to have some company and some assistance in doing the things that he loved to do. Meals were prepared daily and help with dressing meant that John’s children were relieved of their worry about their father taking a fall.
As time went on, however, John’s children began to notice that their father wasn’t taking their calls anymore. The care aide, Jane, always told them that their father was sleeping or that he was occupied, and he rarely returned their messages. John seemed to isolate himself from others and would only deal with Jane on important matters.
When John’s health declined and he eventually passed, his children sat together at the lawyer’s office to have his will read aloud. To their shock, John had spent the majority of his money on new renovations to the lake house the year prior and left the lake house – the only asset he had left – to Jane. Upon hearing John’s family’s concerns, their attorney began investigating the potential of undue influence in the writing of the will.
What can an Attorney Do?
Evidence to support a claim of undue influence can be direct or it may be circumstantial. If you suspect that there has been something insidious occurring, speak to an estate attorney right away. Your attorney will gather evidence and listen objectively to your concerns to determine whether there is a good case for undue influence. Several factors are considered, including but not limited to:
- Changes in wills prior to death – If your loved one had the same documented will for many years but made changes to it in the last months or weeks of her life, had she been under undue pressure to do so?
- Physical and Mental Health – Was the testator’s mental or physical health compromised in such a way that he or she was fully reliant upon one ‘special relationship’ for care?
- Isolation – Was the testator estranged or isolated from his/her family before passing?
- Disputes and Disagreements – Were there any family disputes prior to passing that might have influenced the way the testator outlined his or her final wishes?
- Independence – Was the influencer in question able to control the testator’s business and/or meet with the testator’s attorney privately? Was the testator always under the watchful eye of the influencer?
No single item is absolute proof of undue influence but the more items that exist, the more likely it will be for an investigator or court to find wrongdoing.
How to Avoid Undue Influence
In order to avoid the possibility of undue influence, it is important to understand, and have awareness of, undue influence and its prevalence. Often, those families who are dealing with a contentious issue such as undue influence have been blindsided and have a difficult time admitting that it happened to them.
Only deal with business or financial matters when you can have someone with you who will not benefit from transactions, such as your attorney, CPA, or banker. This protects both the testator and the influencer from accusations of manipulation or exploitation on the part of the influencer. Attend legal appointments independently, if possible.
Perhaps your best defense against undue influence over your estate is communication. We recommend that you update your last will and testament often, to keep it up to date, and communicate your wishes with those heirs who will be impacted. Communicate well and often with your family as well as your attorney, and you may consider including a written document outlining your wishes and your reasons for your decisions.
Other Ways to Prevent Undue Influence
Your attorney may recommend taking other measures to protect yourself against undue influence such as a revocable trust. The reason for this is that a revocable trust remains under your control until the time of your death, at which point it bypasses probate and moves to the disbursement phase. This means that the will isn’t opened to creditors, and it is much more costly and time consuming to dispute. If the circumstances are such that you have concerns about a named family member contesting, you might consider a no contest clause. This clause stipulates that those who contest your final wishes will receive no part of the assets or properties. In order for this to hold weight, however, it is wise to give something to this person in the will so that they stand to lose something by disputing it.