Undue Influence in Estate Planning

When does influence over a will-maker become a matter for the courts?

By , J.D. · UC Berkeley School of Law

People sometimes manipulate others who are vulnerable or particularly dependent on others—for example, someone who's quite elderly or ill. Defrauding someone who is elderly, or just plain stealing, is one form of elder abuse. Another, in the world of estate planning, is to exert what lawyers call "undue influence" on a vulnerable person. One classic example of undue influence is getting an elderly person with dementia to change their will and leave assets to the manipulator.

Family members may not find out about a fishy estate plan until after the person has died; the influencer obviously has a strong motivation to keep last-minute changes under the radar. But it may not be too late. Family members who suspect that a deceased person was taken advantage of (and didn't simply change their mind) can take their suspicions to probate court. If they succeed in proving undue influence, the probate judge could rule that the will, or other estate planning document, is invalid.

What Is Undue Influence?

Someone who suspects undue influence must bring a will contest in probate court, after the will-maker's death. This can be done whether or not there is a regular probate court proceeding to probate the will and distribute the estate assets. It's up to the complaining family member to prove that the will was made under someone's undue influence. To do that, generally the person must prove that:

  • The will leaves property in a way that you wouldn't expect under the circumstances—for example, close family members were left out in favor of others, without an obvious explanation.
  • The will-maker was particularly dependent on, or trusted, the person who exerted influence. (This is sometimes called a "confidential relationship" between them.)
  • Illness or frailty made the will-maker susceptible to undue influence.
  • The influencer took advantage of the will-maker and benefited from the will by substituting his own wishes for that of the will-maker.

Examples of Undue Influence in Families

Some Level of Influence Is Fine

If a busybody cousin of yours regularly calls your father to give him an earful about what lousy kids you and your siblings are, and how he ought to cut you out of his will, that may influence your father (even if you hope it doesn't). But her attempts at meddling don't rise to the level of undue influence. She's just offering her unsolicited opinions, and if your dad is mentally and physically independent, he can follow or disregard them. It's his choice. He might be influenced, but not unduly influenced under the law.

Some influence is fine, anyway; the mere fact that someone was influenced by another isn't enough to throw a will into question. In one case, for example, a daughter contested her father's will because it left property to his friends instead of to her. She had been estranged from both her parents, and alleged that her mother had exerted undue influence over her father. Her evidence? Her mother had been responsible for arranging for new wills and had spoken to the couple's lawyer about their terms, and her father did have some dementia. A judge, however, found no undue influence. (Paine v. Sullivan, 950 N.E.2d 874, Mass. App. 2011.)

When Does It Become Undue Influence?

Let's go back to your dad and your nosy cousin. What if your father were physically frail and suffering from mental confusion, and your cousin moved into his house to take care of him? If she then tried to estrange him from other family members and convinced him to go to a lawyer (especially if she chose the lawyer) to draw up a radically different will, one that left you out and put her in your place, the situation would be very different.

That situation is closer to one in which a court did find that there had been undue influence and declared the will of an elderly woman, Maxine, invalid. Maxine's last will, unlike earlier ones, left 35% of her estate to her friend Rose, who she also named as personal representative (executor). Maxine had suffered from Alzheimer's disease, making her vulnerable. In court, witnesses testified that Rose had controlled Maxine's visitors and tried to keep family members at a distance by telling them not to visit and preventing them from talking to nursing home staff. (In re Estate of Vestre, 799 N.W.2d 379, N. Dak. 2011.)

People who are in a position to control a vulnerable person's living situation or finances are the ones who have the opportunity to exert undue influence over estate planning. For example, undue influence may be exerted by a lawyer, a caretaker, or family. The will-maker may be elderly and frail, and suffering from mild dementia, but that's not always the case. Anyone who is physically or mentally ill can be susceptible to improper influence.

Proving Undue Influence

It can be difficult for family members to win an undue influence lawsuit, but it happens. Because the person who made the will cannot come to court and testify about his or her reasoning and motivations, the court must rely on other witnesses. People who knew the will-maker well—for example, doctors or other healthcare providers, family members, caregivers, and lawyers or other advisers—may all be called to testify about what they know about the relationship between the deceased person and the person who is being charged with exerting undue influence.

Learn more about will contests.

Avoiding Fights Over Undue Influence

Discuss your plans with your family. To avoid a court battle after your death over undue influence, take the same steps you would take to avoid other disputes: Make sure your estate plan isn't a surprise to your family members. If you're leaving assets in a way that will confuse or disappoint relatives, explain it now. Also consider consulting an estate planning attorney if you anticipate conflict after your death.

Take special steps if you want to leave gifts to non-family caretakers. In addition, be careful when leaving gifts to caretakers who are not your family members. Some states have laws that aim to prevent caregivers from taking advantage of the people who depend on them. You can still leave gifts to caregivers who aren't related to you, but first you may need to have a lawyer sign a statement, verifying that you're acting freely and aren't being unduly influenced. If you don't, the gift could be void—meaning the intended recipient won't get it.

Act early if you're worried about a loved one. If you're worried about a vulnerable relative being taken advantage of, acting now to prevent abuse is vastly preferable to trying to fight it later with a lawsuit. In addition, you need to have the necessary mental capacity to make a will. An incompetent person can't make or change a will. If your family member clearly isn't able to make rational decisions (including estate planning decisions), go to court to get a guardian or conservator appointed.

For more information and steps you can take, see Nolo's section on Avoiding Family Disputes.

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