Estate Planning and Undue Influence Over a Will-Maker

November 9, 2023
Person crosses fingers behind their back in deceit.

When older people become quite frail or ill, they also become susceptible to exploitation by those who will defraud or steal. Targeted attacks on vulnerable seniors to exert “undue influence” represents a form of elder abuse.

Such schemes disrupt the seniors’ impulse to provide for their loved ones and instead divert assets to the exploiter. Often, the family members don’t learn about changes to their loved one’s estate plan until after their loved one’s death. In most cases, a manipulator will seek to keep last-minute changes of inheritance quiet.

What Is Undue Influence?

Undue influence is different from meddling or offering unsolicited advice or opinions to an aging family member. Any will-maker who is mentally and physically independent can follow or disregard opinions and advice as they choose. The situation changes when physical frailty or cognitive decline leaves your loved one confused and vulnerable.

As an example, out of need, an older person might welcome a cousin into their home to provide caregiving. That older person’s children may begin to suspect the cousin is seeking to become a potential heir in the will. The children may even begin to experience estrangement from their parent.

They would be well-advised to have a direct conversation with their parent. They may wish to get their loved one’s permission to connect with their estate planning attorney. The attorney can then help confirm that the will and estate documents have not recently undergone changes.

Proving Undue Influence in Probate

What should you do if you believe undue influence was at play regarding the will of your deceased loved one? You can attempt to contest the will by taking your suspicions to probate court. Proving undue influence can prompt the probate judge to rule that the will and other estate planning documents are invalid. Contesting undue influence is allowable even if there is no probate court proceeding to introduce the will and distribute estate assets.

A probate judge will look for a claimant to prove that the will either:

  • Leaves property in an unexpected manner, cutting out close family members in favor of others without an explanation before their death
  • Appears to have been influenced by the confidential relationship of a person the will-maker trusted or was dependent on
  • Shows susceptibility to influence owing to the will-maker’s frailty, illness, or fear of abandonment
  • Directly benefits a person with a confidential relationship who took outright advantage of the will-maker by substituting a will of their choosing

Proving undue influence in probate court will require testimony from people who knew the will-maker well. This may include medical doctors, health care providers, caregivers, lawyers, and other advisers, as well as family members. These individuals then testify about what they know regarding the relationship between the deceased person and the person facing the accusations of exerting undue influence.

Preventing Undue Influence

Probate courts try to adhere to the will as the last voice of the decedent. Therefore, the best and least expensive way to prevent undue influence is to have an open discussion with your aging loved one. Discuss their estate planning and its impact on all generations in the family well in advance of declining health.

Only 45 percent of adult children discuss their parents’ plans for long-term care needs. And only 30 percent discuss who will pay for and manage their care. Only a small percentage of Americans have the proper estate planning documentation. Acting now to prevent potential abuse is much better than battling undue influence in probate court.

Perhaps your loved one already seems to be having difficulty making rational decisions, including with regard to estate planning options. For their well-being, you may consider seeking guardianship or conservatorship through the courts. Appointing a trusted person will ensure the respect of a loved one’s wishes and prevent undue influence.

If your aging parent or other elder is capable, review existing estate plans and share feelings openly. If no plan exists, encourage them to contact an experienced attorney and discuss the need for a will, trust, or both. Understanding and helping loved ones with aging preparations should be a family priority.

Additional Resources

If you believe a loved one may have been the victim of undue influence (or is currently being influenced), contact an estate planning and elder law attorney. Dedicated to educating families about issues that seniors face when experiencing declining health, they can discuss your situation in confidence. Find a qualified attorney near you today. To learn more about estate planning, check out the following informative articles:

Will, Probate, Estate Planning
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