Learn about the differences between these two probate classifications, and see whether the probate of your loved one may qualify for the expedited informal probate process.more...
Types of Actions that can be Considered Undue Influence
“Undue influence” is generally defined under the law as when a person of power uses such power to take advantage of a person who is more or less helpless against the use of such power. With respect to undue influence in connection with making a will, there are a number of common scenarios in which undue influence may impact the validity of a will, such as:
- Using threats or actions to control the helpless person. As an example, a caregiver in a nursing home may inflict fear in an elderly resident who is unable to take care of herself if the resident does not include the caregiver in her will. The resident may fear that the caregiver will hurt her, or perhaps that the caregiver will withhold food, medicine, or otherwise not provide proper care. As a result, the resident asks her attorney to re-draft her will to provide for the caregiver.
- Feigning a love interest. The classic example of this is the attractive young woman who falls for the elderly wealthy man, but in fact only wants to marry the elderly man for his money. Upon being married, the woman persuades the man to disinherit his children, or to give them a substantially reduced inheritance.
What Influence is Considered to be “Undue?”
The question of whether influence is considered to be “undue” will be a matter of fact, and at trial will be determined by a judge. In making such determination, the judge will often consider:
- Evidence as to the soundness of mind of the person. Was she generally aware of her surroundings? Was she capable of taking care of her financial affairs? Did she exhibit any strange behavior that was out of character? All of these actions may suggest that the testator may have been susceptible to undue influence.
- Evidence as to the physical capacity of the person. Was the person completely reliant on the person allegedly exerting the undue influence? Was the person able to get out and about in the community, or was the person essentially confined to a room alone?
- What was the specific relationship with the person suspected of undue influence? Did that person have a long relationship with the testator (particularly when the testator was young and healthy), or did such person suddenly show up near the end of the testator’s life?
- Were the actions of the testator consistent with their past actions?
These are only some of the actions to be considered, there may be many other considerations given the facts and circumstances of the case.
If you are concerned that someone may have exerted undue influence over a loved one, please call me.
Once I learn about the facts and circumstances of your situation, I can advise about what courses of action may be taken.
What Our Clients Say
“He is a trustworthy person who will try to do what’s best for you.”
Google 5 Star Review – J.F.
The firm will not take any action on your behalf unless and until a written agreement for representation is signed by the firm.
Gemma Law Office News & Information
When estate planning is being undertaken at the same time that a person is separated or getting a divorce, it is critical that the person engaging in estate planning fulfill their other obligations concerning asset disclosure in connection with the divorce or separation. A person may not simply shield their assets from a divorce by creating and transferring their assets to a trust, or otherwise giving away assets.more...
If a will is not valid, a person will be deemed to have died “intestate”, and property will be distributed according to state intestate laws. Learn what you need to do to prevent this outcome.more...