Picture this scenario. Your elderly father lives in a different state than you do. He lives alone, because your mother passed away several years ago and he refuses to move closer to you or your other siblings. He seems to get around pretty well but is of an advanced age and decides that it would be a good ides to hire someone to help out around the house, shop for groceries and even occasionally help with his finances. You keep in touch with your dad through the phone on a weekly basis and he’s always said that he wanted you and your siblings to get his estate when he passes away. After your father passes away, you find out that he wrote you and your siblings out of the Will and left everything he owns to the caretaker he hired. Do you have a case for undue influence?
What Is Undue Influence?
First, I want to discuss what undue influence is. Undue influence occurs when someone exerts influence over another person which deprives them of their free will. In the drafting of a Will, undue influence occurs when someone exerts influence over another person to cause them to make their Will differently than they would have if acting through their own free will. Undue influence can also be an issue in the drafting of deeds, changing beneficiaries on bank accounts, life insurance policies, or IRA’s or transferring title of cars or houses.
To challenge a Will based on undue influence you will need to establish facts tending to show that undue influence occurred. There is no one specific formula to establish undue influence, but rather the Court will look at all the circumstances in the case to try and determine whether undue influence was present.
The Process Of Challenging A Will
Generally, the burden of establishing undue influence rests with the person who is challenging the Will. However, if the challenger of the Will can establish that the alleged undue influencer was in a relationship with the deceased that gave them power or influence over the affairs of the deceased and was actively involved in the drafting of the Will a presumption of undue influence arises. Establishing a presumption of undue influence is important because this shifts the burden from the person challenging the Will to the alleged influencer to prove he or she did not exert undue influence. Therefore, the law presumes there was undue influence unless the undue influencer produces evidence to the contrary.
Get Legal Help Today
So in the above fact pattern, based on the information we know so far there is potentially a case for undue influence against the caretaker. However, undue influence is an extremely fact specific inquiry and more information would have to be obtained as to the extent of your father’s relationship with the caretaker and whether the caretaker had any involvement with the drafting or execution of dad’s new Will. If you have concerns about alleged undue influence in the drafting of a loved ones Will, contact our experienced team at Jorgensen, Brownell & Pepin today to discuss your options.