Undue Influence Lawyers

What is undue influence?

The law recognizes that people are free to dispose of their assets as they wish upon their death. However, in circumstances where a will reflects the wishes of someone else due to excessive pressure, the will can be set aside by reason of undue influence.

A testamentary disposition will not be set aside on the ground of undue influence unless it is established that the influence imposed by some other person on the deceased was so great and overpowering that the does not reflect the desire of the deceased person. In such a case, the will does not represent the testamentary wishes of the testator and is no more effective than if he or she simply delegated his will-making power to the other person.

The level of influence required to establish an undue influence claim is very high. It must reach the level of force or coercion. It is not enough to simply allege that the will was changed based on the influence of affection or attachment, or the desire of gratifying the wishes of another. The party challenging the will must prove that the act was obtained through coercion so that the motive was comparable to force or fear.

What is the difference between undue influence and lack of capacity?

A finding of undue influence is not the same as a finding of lack of testimonial capacity. Lack of capacity refers to circumstances where the testator did not understand the nature and effect of his or her will. While undue influence and lack of capacity are often alleged at the same time, an individual may have had testimonial capacity but nonetheless have been unduly influenced, allowing the will to be set aside notwithstanding the presence of testamentary capacity.

What kind of evidence will establish a successful claim of undue influence?

It is often difficult to provide direct evidence. However, the law recognizes circumstantial evidence that may establish undue influence:

  • The increasing isolation of the testator including a move from his home to a new city which increased the respondent’s control over him;
  • The testator’s dependence on the respondent;
  • Substantial pre-death transfer of wealth from the testator to the respondent;
  • The testator’s expressed yet apparently unfounded concerns that he was running out of money;
  • The testator’s failure to provide a reason or an explanation for leaving his entire estate to the respondent and excluding family members who would expect to inherit; and
  • Documented statements that the testator was afraid of the respondent.

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