Undue Influence: What It Is and Why It’s Hard to Prove

Undue Influence: What It Is and Why It’s Hard to ProveYou’ve been spending a lot of time with your elderly mother, who has developed dementia, but your older sister has been spending a lot more, even though she and your mother were never close before. Your sister takes your mother to the doctor, runs her errands, pays her bills, and makes sure her shelves are stocked. You’re not sure what to make of this change of heart- until you learn that your mother has changed her will to leave almost everything to your sister.

Undue influence has been defined as one person using their power over another to induce or persuade them to take a desired action: often the creation of a will, trust, or other document in the first person’s favor. It can also occur when power or trust is used in such a way that it deprives a person of free will. 

In an estate planning context, undue influence is when a third party exerts pressure on a vulnerable testator, removing or restricting their free will and therefore causing them to do something they would not have done if that pressure was non-existent. It’s seen as a form of elder abuse that robs seniors of their right to distribute their estate as they see fit.

What Does Undue Influence Look Like?

One common example is an adult child pressuring their elderly parent to change their will in that child’s favor, just like your sister did with your mother. If the parent refuses, the child threatens to withdraw all personal, emotional, and financial support. For an elderly person who is dependent on that son or daughter to help them attend doctor appointments, get groceries, and even take care of their personal needs, abandonment is an alarming prospect. 

The potential for undue influence can arise when:

  • The testator depends on the other person for their physical and emotional needs
  • The testator is socially isolated and/or recently bereaved

If an elderly or otherwise vulnerable family member makes a new will that’s inconsistent with earlier ones and/or changed their power of attorney in favor of the party allegedly influencing them. 

Why is Undue Influence So Hard to Prove?

Coercion rarely takes place out in the open, among family members who can stop it, so proving it can be a challenge. The burden of proving undue influence is usually on the person challenging the new will or trust arrangement. Essentially, you have to make it clear that your mother’s will updates were not voluntary because your sister’s influence overruled her free will. 

One way to do that is show that there was a relationship of dependence or trust involved. In this case, your sister was your mother’s caregiver, making your mom more susceptible to her influence. When you can prove a relationship of trust, dependence, or reliance on the alleged influencer, you shift the burden of proof. You then have a much better chance of challenging the new will and any other advantages your mother may have involuntarily provided.

What Can You Do If Undue Influence is Involved?

If you believe your mother lacks capacity and she won’t agree to an assessment, your only recourse would be to initiate guardianship proceedings. Using their investigators, the court would determine whether she has capacity and to what extent. The process is difficult, time-consuming, and expensive. However, sometimes it’s the only option when you want to protect a vulnerable loved one.

At Ledwidge & Associates, P.C., we care about your family and can assist you with a guardianship petition that protects your family member’s interests. We can also answer your questions about the signs of undue influence and recommend ways that you can prevent your loved one’s original wishes from being altered by someone’s ulterior motives. To speak to an estate planning attorney, please call 718.276.6656.

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Undue Influence: What It Is and Why It’s Hard to Prove

Ledwidge & Associates

Ledwidge & Associates, P.C. in New York City has years of experience helping clients create estate plans that fit their needs. We have the experience and resources to handle your critical legal matters with the utmost care and attention to detail.
Undue Influence: What It Is and Why It’s Hard to Prove

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