By Ronald A. Fatoullah, Esq. and Eva Schwechter, J.D.
{3:31 minutes to read} Most people have heard the term "undue influence" in connection with a will or an estate plan, but what does it mean and how can it be avoided?
Undue influence occurs when someone exerts pressure on an individual, causing that individual to act contrary to his wishes and to the benefit of the influencer. The pressure can take the form of deception, harassment, threats or isolation. Often, the influencer separates the individual from his or her loved ones in order to create a sense of dependency, so that the individual begins to see the influencer as being the only one he has, and therefore the only one to whom he should leave his assets upon his death. Elderly individuals, individuals with disabilities, and individuals suffering from a form of dementia can be very susceptible to undue influence.
If someone suspects that his loved one was subjected to undue influence that caused the loved one to make drastic changes to his estate plan (most commonly his will), then that individual can contest the will once it has been admitted to probate. The court will consider certain factors when determining whether undue influence was actually present.
One factor the courts will consider is whether an individual disposed of his property in a way that was unexpected under the circumstances. For example, if a man was close with his wife and children his whole life, but in his later years left all of his assets to a favorite nurse or caretaker, that would obviously be unexpected, and would raise suspicion with the court.
Another consideration that the court will look into is whether the person was in a state in which he was likely to be susceptible to undue influence. Specifically, the court will look at the age, health and/or frailty of the person in question. The court will also place a strong focus on whether there was a "special relationship" with the influencer, and whether the person who allegedly exerted the influence had the opportunity to do so.
Generally, the burden of proving undue influence is on the person claiming such influence. However, if the alleged influencer had a fiduciary relationship with your loved one, the burden may be on the influencer to prove that there was no undue influence. People who have a fiduciary relationship can include a child, a spouse, or an agent under a power of attorney.
The important thing to keep in mind when drawing up a will or an estate plan is to avoid anything that will give even the appearance of undue influence. For example, if an individual is planning on leaving everything to his daughter who is also his primary caregiver, his other children may argue that this daughter took advantage of her position to influence the parent in a time of relative weakness.
To avoid the appearance of undue influence, do not involve family members in drafting a will. Family members should also not be present when discussions pertaining to the will are taking place with the attorney. An attorney should request that all family members leave the room before going over the contents of a will with the client, to ensure that the contents of the will are the sole desire of the Testator and not a result of pressure from outside sources. You should also make sure that the attorney keeps a clear record of your wishes, so that if a claim of undue influence is brought after your passing, you can ensure that your estate is distributed according to your wishes.
Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts, wills, and real estate. Eva Schwechter is an associate with the firm. The law firm can be reached at 718-261-1700, 516-466-4422, or toll-free at 1-877-ELDER-LAW or 1-877-ESTATES. Mr. Fatoullah is also the co-founder of JR Wealth Advisors, LLC. The wealth management firm can be reached at 516-466-3300 or 800-353-3775.
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