Ways To Identify Undue Influence

Undue influence claims often arise when an individual’s trust, Last Will and Testament (will), or other estate plans are contested by a surviving friend, family member, or other closely connected party. Those who have concerns that undue influence had an impact on a loved one can reach out to a knowledgeable estate planning lawyer at Fleurinord Law, PLLC for a confidential case assessment. Call our office at (888) 904-2297 or fill out our online contact form to get started today.

Undue Influence in Estate Planning

The National Center on Law and Elder Rights explains that undue influence can occur in a variety of situations. Suspicions of undue influence are especially common when an individual has created a will but friends or family members have reason to believe the person may have been mentally incompetent or incapacitated at the time they created their will.

When a person who has created a will has expressed different intentions than those outlined in the will, or had previously named another beneficiary as part of their will but suddenly made changes, suspicions of undue influence may be warranted.

Types of Undue Influence

There are two primary types of undue influence. These include actual undue influence and presumed undue influence.

Actual Undue Influence

With actual undue influence, the beneficiary must have clearly coerced the grantor to leave them specific assets or to create a will. The court must find that the person making the will did not do so of their own intention or free will. To prove actual undue influence, plaintiffs or their attorneys may introduce circumstantial evidence that could be used to support their case. Threats, intimidation, lies, or other promises the beneficiary makes are examples of actual undue influence.

Presumed Undue Influence

With presumed undue influence, the beneficiary may have had a relationship based on trust and confidence with the grantor. If the changes were made to the will or trust without the grantor’s trust and confidence in the beneficiary, there might be grounds for claims of presumed undue influence.

Identifying Undue Influence

Undue influence in estate planning is far more common than many realize. Identifying undue influence is essential to ensure family members’ wishes are appropriately carried out as they intended before their incapacitation or death. Here are some ways to identify undue influence:

Susceptibility

To identify undue influence, estate planning attorneys must show that the individual who created the will, trust, or other document was susceptible to undue influence. This could be because of:

• Mental or physical incapacity
• Physical dependence, such as is the case when an elderly person resides in a nursing home
• The onset of significant anxiety or depression
• Dealing with the devastating loss of a close family member or a loved one
• Suffering from a severe medical condition

If an individual starts to make changes to their will or other estate plans while experiencing any of these previously mentioned conditions, they may be susceptible to undue influence.

Opportunity

Undue influence can also only apply if there is an opportunity present. According to the Internal Revenue Service (IRS), such opportunities for applying undue influence often occur between wards and guardians, trustees and beneficiaries, and other parties with close relationships.

To exercise undue influence, the individual attempting to make changes or access funds will often try to increase the alleged victim’s dependence on them. Some common signs of this strategy for creating the opportunity to exercise undue influence include:

• Attempts to isolate the potential grantor from their loved ones, family, and friends
• Unexplained or unexpected changes in family member’s ability to connect, communicate, or visit with elderly or vulnerable family members
• Discouraging the potential grantor from obtaining advice from other friends, family members, or loved ones
• Sudden changes to the alleged victim’s will or estate plans
• Sudden changes to any life insurance policies, trust, retirement savings accounts, or other assets

When family members or friends suspect undue influence is impacting a loved one’s safety or the integrity of their will, they may wish to contact an experienced estate planning attorney at Fleurinord Law, PLLC to arrange for a consultation to discuss their concerns.

Accusations of Undue Influence

Unfortunately, accusations of undue influence are often only raised once family members discover that changes to estate plans have been made, there should be distributions from trust accounts, or other issues with a family member’s estate plans that need to be contested. To successfully argue undue influence, the alleged victim’s family should be prepared to show that:

• Someone exerted undue influence for their own financial gain
• This party developed a close relationship with the family member or grantor
• This party exerted undue influence while in a position to influence the estate plans in question

How To Win an Undue Influence Case

To win an undue influence case, plaintiffs, and any estate planning attorneys whose services they retain, will need to consider several factors. These include:

• Reviewing the alleged victim’s estate
• Filing a probate caveat
• Hiring a private investigator to determine the facts and gather valuable supporting evidence
• Securing a background check of the individual accused of exerting undue influence
• Interviewing witnesses to the will creation or estate plan changes
• Securing all of the alleged victim’s medical records for the past ten years, including nursing home records, long-term care records, and physician notes
• Reviewing the notes of past legal representatives who witnessed or aided in the development of creating the alleged victim’s will
• Gathering circumstantial evidence to support claims of undue influence
• Showing a pattern of the defendant increasing the alleged victim’s dependence on them by limited access or isolating them
• Gathering the names, contact information, and addresses of witnesses
• Obtaining expert opinions from those who have reviewed existing medical records to determine testamentary capacity
• Gathering demonstrative evidence, including photographs, handwriting samples, home videos, and other evidence to show how the defendant influenced the alleged victim
• Deposing the notary or attorney who created or signed off on the changes made to the alleged victim’s estate plans.

Getting started on any investigation of possible undue influence claims as soon as possible is crucial, as many of these records may only be available for a limited time. Because judges presiding in summary trials do not assess witness credibility, it may be advisable to avoid a summary trial, if possible. The lack of witness credibility assessment could have a devastating impact on the outcome of the case.

Get Help From an Estate Planning Attorney Today

Those who suspect undue influence may have affected their family member’s estate plans may be able to take legal action and ensure the trust or estate instructions are followed as intended. To learn more about how to raise an undue influence claim, get help from an experienced estate planning lawyer at Fleurinord Law, PLLC, for a confidential consultation. Reach us through our secured contact form or by phone at (888) 904-2297 to get started as soon as today.