In order to challenge a Last Will based on undue influence, the person making the challenge must prove the following:
That another person used words or conduct, or both, which, at the time of the making of a will:
- Deprived the person making the will of his or her free choice; and
- Caused the person making the will to make it or part of it differently than he or she otherwise would have.
The actions of an undue influencer can often be very subtle. This is especially true in the case of an elderly person or a person with significant health problems. Some signs of undue influence that other family members should look for are as follows:
- Susceptibility to Undue Influence. Cognitive decline, pain, and medications can contribute to making a person more susceptible to undue influence.
- Opportunity to Exercise Undue Influence. Daily or near-daily contact by the undue influencer provides an easy opportunity to exercise undue influence.
- Separation from Family and Friends. The undue influencer may limit or prevent visits from family and friends, usually under the guise of the person is not feeling well. People who call may notice that the undue influencer always answers the telephone.
- Drastic and Unnatural Changes to the Estate Plan. A drastic change would involve a person who wanted his or her estate distributed equally among his or her children but has now left the entire estate to one person. An “unnatural” change would be leaving the entire estate to a non-family member. A classic example is when a dishonest caregiver has the person sign a new will leaving everything to the caregiver.
- Fear that Family Members Will Remove the Person from His or Her Home. The undue influencer realizes that the person wishes to remain his or her home and convinces the person that other family members are out to remove the person from the home and place the person somewhere that they do not wish to be, such as a nursing home.
These factors are not exclusive. An evaluation of undue influence can become very comprehensive and detailed. If a relative has recently died and you believe their Last Will disposes of assets in a way that seems very one-sided, our Longmont estate planning attorneys at Jorgensen Brownell & Pepin P.C can sit down with you and evaluate your case for undue influence.