Losing a loved one is a heartbreaking experience. What makes your grief even worse is discovering you’re not named in the will.
Was that indeed the wish of your loved one, or was undue influence exerted upon them?
Red flags
Undue influence is the use of manipulation or coercion to control another person. The influencer pressures them to change their will to benefit the influencer, sometimes completely cutting close family members out of the estate plan. Elderly people are typically more susceptible to manipulation due to their trust and dependence on others.
The process of gaining influence over the victim is slow and subtle, but here are some red flags that may indicate the influencer is attempting to gain control:
- They attempt to make themselves indispensable so the victim comes to depend on them
- They slowly isolate the victim from their family and friends
- The elderly person is reluctant to speak about their finances
To contest a will on the grounds of undue influence, an heir must file a formal objection with the probate court within 90 days of the will being submitted for probate. The challenger has the burden of proof to show evidence of undue influence. The court will hear testimony, review documents and evaluate the evidence before rendering a decision. It will consider the following:
- Did the accused have a confidential or dependent relationship with the deceased?
- Was the accused an active participant in creating, altering or executing the will?
- Do the will’s terms disproportionately benefit the accused?
If the court decides in favor of the challenger and agrees that undue influence was a factor in the creation, alteration or execution of the will, then the may void part or all of it.
Proving undue influence isn’t easy. Therefore, you should work with someone who can review the terms of the will and the surrounding circumstances. They can determine if you have a case and suggest the best course of action moving forward.