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The importance of a last will and testament is talked about frequently in the estate planning world, and any estate attorney would recommend creating a will as a viable option. Although wills allow much freedom to the creator in what they handle, they are not invincible to outside manipulation, including undue influence.

Although often a relatively difficult area to succeed in, it is entirely possible to contest a portion, or even an entire will, with enough evidence of third-party influence on the writer. Now, in what ways can a party unduly influence the writer of the will? Perhaps physical influence comes to mind, or maybe a selfish family member manipulating an elderly relative late in life. Undue influence can come from a number of sources, and we aim to walk you through identifying undue influences and what you can do to save an estate from being distributed in a way that goes against the will’s creator.

What Is a Last Will and Testament?

In brief, a last will is a written document detailing what a person wants done with their property and assets once they die. A properly written will is legally binding, and must be signed by the subject of the will, called the testator. A last will is essentially a list of instructions left behind by the creator of the will, which are executed by a designated person called the “executor” alongside the courts, initiated by a legal process called “probate.”

What Is Undue Influence?

Undue influence is a way in which a will can be challenged by a beneficiary or other person whose interests are closely tied to the will. It exists if a person in a position of power utilized that power to sway the testator (creator of the will) in a way that would somehow benefit the person in power against the wishes of the testator.

Of course, a normal amount of influence, such as a family member requesting something of the testator, is normal and allowed. After all, a simple request is something the testator can consider and decide on for themselves. The difference between regular influence and undue influence lies in the termination of free will as a direct result of heavy influence by a third party. Duress or deception can result in a situation where the testator is tricked or feels unnatural pressure to change their will in some way, stripping them of their power to make decisions freely.

Getting the Chance to Challenge a Will

A will can be challenged in court for a variety of reasons, one of which is undue influence. After a testator dies, their will enters the probate process in court, thus validating the will and beginning the official estate distribution process. If someone wishes to challenge it before probate, or “pre-probate,” they can file a motion called a “caveat” to stop the probate from happening in order to pursue the challenge as a separate case. If probate has already begun, the “post-probate” process requires a separate filing in the same court.

Not everyone can challenge a will, either. You should be an “interested party,” or a person or group who is directly financially damaged as a result of the undue influence. Let’s say Kari is the granddaughter of the testator, her grandmother, who was unduly influenced by a nurse in her nursing home to alter her will, omitting Kari’s portion of the estate. A friend of Kari’s grandmother feels that the will has been changed suspiciously. Despite the grandmother’s friend – someone not originally included in the will and unlikely to ever be included – being very upset over the situation, only Kari is allowed to challenge her grandmother’s will in this situation.

How Do You Prove Undue Influence?

In order to show undue influence, the challenger of the will must prove a few things. Below is a very general list of things needed to be proved, although the process is slightly different in each state:

1. The testator was in a susceptible position;
2. There was another person who had the chance to take advantage of the testator’s susceptible position;
3. The person in power used improper influence, whether actual or attempted; and
4. The influence was successful in changing the will based on their influence

Let’s say Kari is a beneficiary of her grandmother’s will. In the years before her grandmother passed away, she lived in a nursing home and was primarily taken care of by a particular nurse. About three months prior to her death, her grandmother drastically rewrites her will for the first time in over 20 years. The rewritten will omits Kari as a beneficiary and replaces her with the nurse. If Kari feels she can show that her grandmother was susceptible, the nurse had a position of power over her, exerted that power, and got Kari’s grandmother to rewrite her will to benefit the nurse to Kari’s detriment, Kari can challenge the will in court under the reasoning of undue influence.

Kari cannot simply walk into court and claim that the will was unfair without any backing, however. Kari must provide sufficient evidence. If Kari is able to find writings or recordings of the testator directly expressing their original intent with the will, that would count as evidence. Additionally, putting together a timeline with some supporting evidence, even things like birthday cards and personal notes could be enough to sway a judge that a relationship existed to the point where omission from a will is suspicious. Lawyers notes from the previous iterations of the will can also be helpful in understanding the testator’s intentions when they were more sound of mind. Being able to provide factual evidence is crucial, otherwise a judge will simply view the situation as someone being upset for not being included in a will.

It is recommended that Kari, or anyone else planning to challenge a will, meet with an established estate attorney. Although Kari appears to have a fairly straightforward case, many other cases involving undue influence from close family and friends can be far more difficult to prove. Challenging a will is not an easy process, and only an established estate attorney can assess what can be provided as evidence and gauge the odds of success in such a case.

Why Hire an Attorney?

Challenging a will is far from easy and is hardly a quick process, and an undue influence basis for challenge can be vague and hard to show. Technically, no beneficiary can be barred from challenging a will, but only working with a qualified attorney will ensure the highest chance of success with a challenge, or even guidance on whether a challenge is the best option for remedy.

At Rosenblum Law, our experienced attorneys will work with you step-by-step to figure out whether contesting a will is a viable solution, and if so, the best way to navigate a contest. Call us now to get the process underway with a free consultation.