Losing a loved one is a difficult and stressful experience, but the grief and sorrow associated with such a death is compounded when you are omitted or removed from his or her will in favor of another person who may have perpetrated undue influence.
Undue influence occurs when a testator (a person who makes a will) is subject to mental, moral or physical exertion that destroys his free agency by preventing him from following his own wishes and causing him to accept the dominance and influence of another. If undue influence can be proven, the testator’s will can be invalidated.
The following elements of undue influence must be present in order for it to be presumed: (1) a confidential relationship existed between the testator and the party who benefitted as a result of undue influence; and (2) there are suspicious circumstances, even if slight.
A confidential relationship exists when one party has trust or dependence upon another. It also exists when one party is weak, possibly due to a physical or mental condition, or one party has superior knowledge as a result of the confidential relationship. Some examples are a home health aide and the person she cares for, a doctor and her patient or an accountant or attorney and her client. Confidential relationships can also exist between family members. The existence of a confidential relationship suggests the parties are not on equal terms and the testator might not appreciate or understand what the undue influencer is coercing her to do.
Suspicious circumstances only need to be slight and must suggest inequality, unfairness or overreaching. Examples would be if the undue influencer participates in a meeting between the testator and the attorney drafting the will about the provisions of the will, makes disparaging remarks to the testator about the testator’s closest heirs, or even something as subtle as the undue influencer attending the will execution.
The following are a few examples of undue influence:
- An ailing senior citizen changes his will to remove his son and leave his entire estate to his home health aide, who has a history of making disparaging remarks about the son.
- A doctor suggests to his patient to make a bequest under her will to a charity of which the doctor is a member of the board of directors.
- The testator’s child, who lives with the testator and provides necessary assistance to him, threatens to abandon the testator if he bequeaths his real estate to the child’s sibling instead of the child.
Once an allegation of undue influence is presumed, it can be rebutted by affirmatively establishing that: (1) no undue influence was used; and (2) the testator’s actions were voluntary and understood by her.
If you believe your loved one was subject to undue influence, it is important to consult with a qualified elder law firm as soon as possible to make sure you timely assert your claim. Contact the experienced elder law attorneys at Mandelbaum Salsburg, P.C. for a free consultation. We will be there for you every step of the way and work vigorously to achieve the best possible outcome.