When planning an estate and drafting a will, the intent of the testator is to make sure his or her final wishes are carried out. While some people rely on friends and family members to help them make decisions about the final disposition of their property, others may be secretive and refuse to discuss the issues or disclose the contents of their will. Some people may leave all of their property to their family while others may elect to disinherit their children and leave all of their assets to a charity. Whatever the final choice, the purpose of a will is to make sure that the testator’s choices are carried out. Unfortunately, when undue influence is present, this does not necessarily happen.
Undue influence occurs when another person has exerted such pressure and persuasion over the testator as to cause the will to contain the desires and intents of the influencer, and not that of the testator. This undue influence must actually be present at the time the testator executes the will and must be so strong as to make the signing of the will essentially an involuntary act.
If a person contests a will on the grounds of undue influence, a court can look at many different types of evidence to decide if the claim has any merit. These factors include the opportunity the influencer may have had to exert undue influence, the amount of persuasion the influencer attempted to exert over the transaction, whether the influencer actively participated in the transaction, and whether the will as signed by the testator actually benefits the influencer. The court will also look to whether the people that one would expect to have benefited under the will, such as close friends and loved family, were unexpectedly disinherited.
It is also important to note that undue influence will be considered in light of whether the testator had some degree of diminished capacity. The more vulnerable the testator was, either by virtue of physical or mental deterioration, the more likely it is that an influencer’s pressure will be considered “undue influence.”
If you have concerns about undue influence or other invalidating circumstances for the will of your loved one, you need to speak with an experienced attorney. Call us today at (320) 299-4249 for a consultation.
