Has a loved one’s will been changed without your knowledge? Was your inheritance written out? Are you concerned that someone has been conspiring to get the inheritance for themselves? If so, it is possible that you might have a legal claim of Undue Influence and a chance to void the will.
Undue influence might be described as duress, force, coercion, or overpersuasion. Simply put, Undue Influence is when someone has, in some way, forced their will upon a person writing a will.
If you are concerned that someone has influenced a loved one’s will with undue influence, there are two things you should look out for. First, there must be a confidential relationship between the person that wrote the will and the person that sought to change it. Second, there must be active procurement of the change in the will.
A confidential relationship may be a legal or fiduciary relationship, or it may be a personal relationship. This is a very broad term and could be used to describe any relationship where one person has a strong reliance or influence on another person.
Active procurement, on the other hand, is a bit more specific. Active procurement might exist when someone with a confidential relationship is present during the drafting of the will. It might also exist if that person suggests a specific attorney to draw the will and if he or she gives specific preparation instructions to that attorney. Someone providing specific witnesses for the will execution or keeping the document after it is executed might also amount to an active procurement.
Showing both a confidential relationship and active procurement creates a presumption that undue influence was involved in the drafting of the will. This means that, unless the proponent of the will is able to give a reasonable explanation for their influence, a judge will be able to void all or part of the will.
Be aware that if the beneficiary of the will is able to present a reasonable explanation for their role, this presumption of undue influence disappears. In this case, the burden of proving undue influence shifts back to you and you must prove it by a preponderance of the evidence. Simply put, a preponderance of the evidence is when you are able to show a greater weight of evidence to support your position than the other party.
There are many types of evidence to help you meet this burden of proof. For one, any evidence you have previously shown of a confidential relationship or of active procurement will still be valuable evidence. In addition, here are some examples of evidence that you could use to help build your case: There might be an unusual and sudden change in the intentions your loved one had for the will. The person exerting the undue influence might be the sole beneficiary under the new will. The person making the will might be elderly, or might have declining physical or mental health. The will might have been executed in secret, away from the eyes of those that might contest it. The one procuring the will might have paid for the preparation of the will or the attorney involved.
If any of these circumstances apply to your situation, it is important that you speak with an attorney regarding your rights.