Wills - Undue Influence

WILLS – UNDUE INFLUENCE

Q.  Can a will be overturned for undue influence?

 

A.  Yes.  The free use and exercise of being of sound mind is vitally important and absolutely essential in the validity of a will.  A will can be void, in whole or in part, if the execution is caused by fraud, duress, menace, undue influence or mistake.  Undue influence is a recognized ground for contesting the probate or setting aside a probated will.

 

            If one is to prove undue influence as required for the invalidation of a will, that person must prove overpersuasion, duress, force, coercion or artful or fraudulent contrivances to such a degree that the one preparing the will lost his freedom of thought in preparing and making the final provisions of his will.

 

            It must be shown that through the practice of persuasion, pressure, artful or fraudulent contrivances, the will was prepared subject to the desires and wishes of an overpowering person and not truly in the best wishes or desires of the person preparing the will.

 

            In addition, in order to defeat a will, undue influence relied on as a ground of contest must have operated on the testator at the time the will was executed.

 

KINSHIP AND PERSONAL RELATIONSHIPS

 

            Influence that arises from mere affection, attachment, desire to please or gratify is probably not enough to invalidate a will.  Even if affection based on an illogical infatuation is proven, it is probably not enough to prove undue influence.

 

KINDNESS

 

            Kindness, of itself, does not constitute undue influence nor is it evidence of it.  Kind offers and good deeds are not improper, and a will cannot be overturned because such influences produced requests in a will.

 

MARITAL RELATIONSHIPS

 

            There is no such thing as a confidential relationship between husband and wife governing contests of wills.  It is possible under special conditions for the wife or husband to exert undue influence in a will if the testator’s emotional, physical or mental condition is impaired.

 

BENEFICIARY’S HELP IN DRAFTING WILL

 

            Generally, the court views beneficiaries helping to draft wills with disfavor, and such circumstances are considered suspicious and invite close scrutiny.

 

TESTAMENTARY CAPACITY vs. UNDUE INFLUENCE

 

            If a will is attacked on the grounds of undue influence, then it has been accepted that the party was of sound mind.  If it can be proven that a will was executed while one was intoxicated, then the area of competency could be challenged.

 

UNNATURAL, UNREASONABLE OR UNFAIR CHARACTER OF WILL

 

            The circumstances surrounding a will that is unnatural, unreasonable, unfair or unjust are generally regarded as evidence that the issue of fraud or undue influence is present.

 

DEGREE OF PROOF

 

            Proof of undue influence is difficult, and, of course, has to overcome the presumption that the will expresses the voluntary intent of the testator.

 

            For questions in this area of the law, please seek the advice of a competent attorney specializing in estate planning.