Feel You Are Being Pushed Into Changing Your Will? Here's What You Need To Know About Undue Influence
If you've recently been diagnosed with a terminal illness and a beneficiary is pushing you to make changes to your will, you should speak with an attorney immediately. While this is—no doubt—the most difficult time in your life and you are likely stressed, making changes to your will at the insistence of someone who will benefit the most from those changes may cause the will to be contested by other beneficiaries or family members. Here's why and what you can do to prevent your will from being contested.
Claims of Undue Influence
If your beneficiary is persistently asking you to change your will and demanding that you do so with urgency, this may be considered undue influence. It's similar to extortion or blackmail, but different in that no force or threats are used. Instead of force or threats, the person uses flattery and deception. He or she may hint or suggest that something bad will happen if you don't change your will to benefit them.
They may be persuasive and persistent to the point that you feel as if you have no other choice, thus affecting your free will to make the right decision. A claim of undue influence can be made by a family member, other beneficiary, or an interested party (such as a probate attorney or a trustee) after your death, which would lead to the will being contested in probate court.
4 Factors Must Be Met for Undue Influence
There are four factors that must all be met in order for a judge to rule in favor of claims of undue influence. All factors will be considered and given weight, but they all need to be met to some degree.
- Were you susceptible to their influence?
- Did they have the opportunity to persistently influence your decision to change your will?
- Have they tried to insulate you from others and keep you from seeking advice?
- Were there any suspicious or unnatural transactions or changes?
If the above list sounds familiar, your beneficiary may be trying to unjustly and unduly influence you.
Proving the Claim in Court
Simply suspecting that someone has been attempting to use undue influence isn't enough for a judge to allow your will to be contested. The party or parties who may contest your will will need to show evidence of the claims of undue influence being true, which can be fairly difficult unless there is direct evidence, such as handwritten notes and recorded phone messages. Most often, the circumstances regarding the case are considered as indirect evidence.
Reduce the Risks of Claims of Undue Influence
The best way to reduce the risks of being subjected to undue influence by your beneficiary, and any claims that might follow as a result, is to consult with an estate planning services attorney before you make any changes to your will. Do this without the beneficiary in question being present when you meet with your attorney. Be prepared to discuss the various aspects of the methods of undue influence that you feel may have been or are being used.
If the attorney believes there may be a problem with the will being contested, yet he or she does not believe there is any undue influence occurring, the attorney can provide a document stating that they discussed the issues with you and they feel you are acting on your own free will to make the changes to your will. If, however, your attorney believes there may be undue influence occurring, he or she may then want to speak with beneficiary to help you in making the decision as to whether or not you should change your will and to what extent.
