As estate planning attorneys, one of the many things we watch out for when preparing Wills and similar documents is undue influence on the client. Undue influence occurs when someone is convinced to do something that differs from what they would have done if they had been left to make their own decision. The examples given here reference signing a Will, but it can also happen by other means—such as through gifts, changing ownership of accounts, or changing beneficiary designations on accounts. It could also occur with signing other documents, such as a Power of Attorney.
The reality for most people is that as they get older, they naturally start thinking about who they want to receive their property when they pass away. During the same stage of life, people are more likely to suffer physical or mental declines, become more dependent on others, or live in relative isolation. Unfortunately, these conditions can create opportunities for wrongdoers to take advantage of a person who is at a prime age to sign or revise their Will.
Undue influence is not limited to elderly people; it can happen to those who are sick or who have disabilities; a common theme with undue influence is that the wrongdoer exploits a person’s dependence on them. An example would be a caretaker ingratiating themselves with an elderly person, perhaps (but not always) isolating this person from their friends and family, and then suggesting or pressuring the elderly person to transfer property to them. Thus, in a case of undue influence, the testator (the person signing the Will) signs a Will that leaves their property not how they originally wanted, but instead based on what the wrongdoer convinces them to do.
Here are some suspicious circumstances to look out for if you have a question about whether someone has unduly influenced you or a family member: (1) you are in a weakened physical or mental condition; (2) the wrongdoer/undue influencer participated in preparing the Will or made the arrangements for an attorney to prepare it; (3) you did not receive advice from an attorney regarding the Will; (4) the Will was prepared quickly or in secrecy; (5) your attitude has changed towards others because of the relationship with the wrongdoer/undue influencer; (6) there is a difference between your new Will and your previous Wills; and (7) the Will distributes property in a way that seems unusual or unfair.
Undue influence is important because if you have (or if someone you love has) been unduly influenced in signing a Will, a court can set aside the Will. The result of this could mean that your property is distributed via the laws of intestacy—in other words, as if you had no Will at all, or according to an earlier Will if you had one.
If you are worried that you might have been unduly influenced, please contact an attorney for help.