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YOUR FAMILY'S ASSETS & LEGACY

Recognizing undue influence in estate planning

by | Jul 8, 2022 | Estate Planning |

Estate planning is an important and necessary endeavor for everyone, especially for your family members who are vulnerable due to cognitive deficit, physical frailty, or isolation.  Those vulnerabilities may lead to manipulation of the individual by someone not interested in their well being or wishes.  The manipulator may be able to defraud your family member by interfering in their estate plan.  This is called “undue influence” and if it is suspected in an estate, the necessary remedy is a Will contest.

Not all influence is “undue influence”.   In New York, the only person that must be provided for in an estate plan is the spouse of the person who has passed away.  Just because your relative did not provide for you financially does not mean that undue influence occurred and that you will be successful in a Will contest.  Generally, the following circumstances indicate that undue influence may have been involved:

  • A Will leaves out a relative who was included in previous plans or who would be a natural heir of the Will maker – with no obvious explanation.
  • A Will provides only for the manipulator after a period of vulnerability and dependence.
  • A Will provides for someone with a confidential relationship with the Will maker.
  • A Will was made during or immediately after a period of medical illness, physical frailty or mental deficit.
  • A Will was made without the aid of an attorney after a period of vulnerability, or a long-standing plan was completely changed with no apparent reason.
  • A Will was made during a period where you were unable to connect with your relative due to a period of isolation by a caregiver.

If you believe that undue influence has occurred and you have been financially harmed, you will bear the burden of proof in a Will contest.  This is a difficult burden to overcome as the Will maker is no longer available to testify about their motivations and reasoning in making their plan.   Proof must be submitted in the form of documentation and witness testimony which will be different in every case and many times circumstantial.

Certainly, making sure that your vulnerable family members and loved ones are properly advised and represented during their lifetime can help to avoid a situation of undue influence.  But if your family member has passed away and you suspect that undue influence has occurred, a Will contest may be possible, and you should seek the advice of an experienced estate attorney immediately.

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