Should I Contest the Will? Undue Influence

Our society highly values private property rights and the freedom to contract. As a result, the legal system gives significant deference to an individual’s choices regarding the disposition of their estate. Provided a will or trust was executed according to law, courts are very reluctant to declare it invalid. One exception is in cases of undue influence.

What is undue influence? It is not merely influence of a general nature; for instance, a son or daughter suggesting that their parents contact an estate planning attorney. Rather, undue influence exists whenever there is a level of coercion such that another person’s wishes are substituted for those of the person making the will or trust. The classic example of undue influence is a caretaker abusing the trust and confidence of an elderly patient and convincing the elderly patient to disinherit family members in favor of the caretaker.

Keep in mind, however, that the burden of proving undue influence lies with the party contesting the will or trust. Typically, this is a difficult hill to climb. Some factors that give rise to a presumption of undue influence include whether the will or trust’s maker was of advanced age or impaired faculties, whether the person charged with undue influence was present and/or active during preparation of the will or trust and whether the will or trust’s maker had independent and disinterested advice.

If you think a loved might have been unduly influenced in making their will or trust, then it is a good idea to consult with a knowledgable attorney about your options.

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