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. If those wishes are manipulated by an outside party, it is known as undue influence.

In many undue influence cases, the influencer — or manipulator — aims to take advantage of the testator (the person creating the estate plan) by exploiting their weakened mental or physical state and encouraging that person to change their Will, trust, and other estate planning documents for the influencer’s benefit.

Virginia’s new standard for undue influence

A new standard for undue influence was introduced for Virginia Will contest cases on July 1, 2022 (Senate Bill 554). Under the new Virginia Code, the standard now reflects the presumption that undue influence was exercised over the decedent whose Will is in question. The change reflected in Virginia Code Section 64.2-454.1 changes the previous standard in Will contest cases which provided for only a temporary presumption of undue influence and was, therefore, easy to overcome.

Under the new law, the burden of proving the validity of an individual’s Will in undue influence cases has shifted from the plaintiff to the defendant. Plaintiffs now have the upper hand with the presumption that undue influence was at play place and are, therefore, in a better position to contest Wills they believe were not freely enacted.

What does undue influence look like?

A person susceptible to undue influence often in a compromised situation arising from a physical or mental vulnerability, like a nursing home resident or someone who is mentally incapacitated due to illness or old age. Situational factors, such as mourning the loss of a loved one, experiencing depression, anxiety, or another mental illness, and suffering from a serious medical condition, can also make a person susceptible to undue influence. These factors allow an influencer to manipulate the individual in order to gain their trust and, subsequently, control over their assets through their estate plan.

Common instances of undue influence

Some of the most common examples of undue influence include:

• Caregivers of the elderly who influence a testator to receive a legitimate heir’s inheritance.
• Adult children who threaten their parent(s) to receive more in the Will than their siblings.
• Stepparents who influence their spouse to increase their inheritance, therefore taking assets and monies away from the spouse’s heir(s).
• A service provider who creates a relationship with someone to then influence them to add them in their Will.
• Abusive family members or friends who try to stake a claim in the testator’s Will when that person had no intention of including those individuals as beneficiaries.

How to identify undue influence

Here are a few key things to watch out for if you suspect someone may be trying to exert undue influence over you or a loved one:

• They’re attempting to isolate the testator from their close family, friends, and others who may be seen as trusted advisors so they can become the most “trusted” person in the testator’s life.
• They’ve become more closely involved in estate planning when it isn’t their business.
• They ask to be added to financial accounts they were not previously authorized on.

How to counteract accusations of undue influence

If you tend to be the sole caregiver for your parent and they live in your home, provide access to your parent for your siblings. Even if you have a strained relationship with a sibling, allowing access to your parent can avoid your sibling from claiming undue influence down the road. Mending relationships with siblings and being transparent about what is going on with your parent and what their wishes are can also help avoid future claims.

Having written agreements with a parent or someone you are caring for can also help reverse undue influence. If you and the person you are caring for have an agreement, such as they will pay you $500 a week for your help, get that agreement in writing. Additionally, only accept payments via check, as a paper trail can help call out and void false undue influence claims.

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.