Was there Undue Influence?

A valid Last Will and Testament must be the free expression of the maker’s desire.  Therefore, if a Will is obtained through undue influence, it is likely invalid.  Undue influence contemplates that the testator’s mind was so controlled by persuasion, pressure, and outside influences that he or she did not act voluntarily, but was subject to the will of another when execution took place.

The burden of proving undue influence is generally on the contestant of the Will.  However, a presumption of undue influence may exist when:

1. the beneficiary had a confidential relationship with the maker
2. the beneficiary was present during the execution of the Will
3. the beneficiary recommended the attorney to draw up the Will
4. the beneficiary had knowledge of the contents of the Will prior to execution
5. the beneficiary gave instructions as to the preparation of the Will
6. the beneficiary secured the witnesses to the Will
7. the beneficiary paid for the preparation of the Will, and
8. the beneficiary was given the Will for safekeeping after its execution.

If such factors exist, the burden may then shift to the proponent of the Will to prove that undue influence did not exist.

If you believe that undue influence existed and plan on contesting a Will, or there is a need to defend an allegation of undue influence, you should retain the services of an attorney experienced in will contest matters.  There is extensive caselaw in these types of matters and the facts and circumstances, evaluated against such caselaw, can affect the ultimate outcome.

by Kirk T. Bauer, Esq.