Undue influence refers to the act of using extreme persuasion to cause another person to avoid using his or her best judgment or free will to cause an inequitable result. Though undue influence applies in all aspects of contract law, the first time you may hear the term may be in relation to a loved one’s will.
When a person uses undue influence in conjunction with a will, it typically means he or she uses his or her authority to persuade the testator to leave all or most assets to him or her. If you and your loved ones suspect that a family member or friend exercised undue influence when caring for the testator, the burden of proof lies on you to prove it. The American Bar Association explains the four elements of undue influence you must establish.
Vulnerability of the victim
For undue influence to apply, you must prove that the victim was excessively vulnerable. Evidence of such vulnerability may include an illness, disability, age, injury, incapacity, education level, dependency, isolation, emotional duress and impaired cognitive function. You must also establish that the influencer knew or should have known of the victim’s vulnerability.
Influencer’s authority
In addition to proving the vulnerability of the victim, you must also prove that the influencer had some sort of authority over him or her. A person with authority may include but is not limited to a care provider, spiritual advisor, family member, fiduciary, legal professional or home health care professional.
Overt tactics
If you can establish both vulnerability and authority, you must then be able to pinpoint the tactics the influencer used to coerce the victim. Though such tactics look different in differing situations, common methods are as follows:
- Controlling necessities, such as interactions with loved ones, medication dosages, and/or access to sleep and/or information
- Initiating changes in property rights via secrecy or haste, at inappropriate times and places, and while claiming expertise in effecting those changes
- Using intimidation, coercion or affection
Inequitable results
The final element of undue influence is the inequity of results. While inequity often manifests in economic loss to the victim, it may also include divergence from the testator’s wishes or an inappropriate change to a will in light of the nature and length of the relationship to the influencer.
You must be able to establish each of these elements to prove undue influence. Doing so is rarely easy, and it is best to seek legal help if you suspect that fraudulent dealings occurred in the creation or modification of your loved one’s will.
