When an individual creates their estate plan, it is assumed that the Will, trust, and other estate planning documents reflect the sincere wishes of their creator. However, there are some cases in which an outside party attempts to override a person’s judgment during the estate planning process. This is known as undue influence, and it’s the root cause of many estate planning fraud cases.
In cases of undue influence, the “influencer” aims to manipulate a testator (the person creating an estate plan) to act against their own wishes and arrange their estate plans in a way that benefits the influencer. In many cases, the influencer is taking advantage of the testator’s weakened mental or physical state to persuade them to make certain changes to their Will, trust, and other estate planning documents.
What does undue influence look like?
Undue influence can occur in any type of relationship, with testators of any age or health condition, but the most common cases involve the manipulation of an elderly individual who may be in a compromised state of health. The influencer is often someone close with the testator with intimate knowledge of their health and/or financial standing, such as:
- A new romantic partner who becomes deeply involved with the testator’s finances.
- A caregiver, such as a nurse or home health aide, who works closely with the testator.
- A family member who begins spending an unusual amount of time with an aging parent or relative.
While these types of relationships are often healthy and free of ill intent, it is possible for them to evolve into a case of undue influence if someone spots an opportunity to persuade the testator into leaving them assets or property.
Often, undue influence is not discovered until the probate process, when family members who seem like the logical beneficiaries learn their recently-deceased loved one has left parts or all of their estate to someone other than them. The court then examines the conditions under which the testator created their most recent estate plans before their death to determine whether undue influence has occurred.
How to identify undue influence
It can be difficult to spot undue influence, especially when on the outside it could look like a romantic interest, friendship, or a professional relationship. It could even happen to you as you’re creating your estate plans, even if you are of sound mind and body.
There are a few key things to watch out for if you suspect someone may be trying to exert undue influence over you.
- They’re closely involved in your estate planning (and shouldn’t be). It’s normal for families to discuss their estate plans and communicate their final wishes, even long before their death. In these discussions, watch out for a child, relative, or other person in your life who begins making specific suggestions about how to divide up your estate (especially in a way that benefits them).
- They’re attempting to isolate you from loved ones. An influencer will try to separate the testator from their family and friends, particularly those who would have been the testator’s named beneficiaries. They may try to turn you against them by speaking negatively about your loved ones or convincing you that your chosen heirs would not manage your estate responsibly – and that they would be the better choice.
- They ask you to add them to financial accounts. While most joint financial accounts belong to spouses or partners, it’s not unusual for a parent and child, or two close relatives to share an account. However, if someone who was not previously involved in your finances asks to be added to your financial accounts (and there’s no logical reason for them to do so), they could be lining themselves up to automatically inherit the account after your death.
One of the best ways to avoid undue influence is to create your estate plans independently, with the help of an experienced estate planning attorney. If you’re worried about undue influence from family and friends, or simply need help drafting your estate plans, contact the Law Office of Patricia E. Tichenor. Schedule a free half-hour consultation to discuss your needs.