Undue Influence: How it Happens and What You Can Do

The subject of many a soap opera plot and even some films (like Rian Johnson’s 2019 sleeper hit, Knives Out), undue influence can be a fascinating way to explore family dynamics. But, it’s a little more nuanced than Hollywood makes it out to be – and a little less entertaining in real life.

In this article, we define what is and isn’t considered undue influence, take a look at what happens when someone suspects undue influence, and provide some guidance about how to avoid the drama, inconvenience, and pain that are usually the result of someone contesting a Will.

Defining Undue Influence

Most people assume that undue influence refers to any instance in which one party convinces another party to change their Will in an unexpected way that benefits the person exerting influence while short changing others—typically family members—who would otherwise have received a larger inheritance. This definition of undue influence is not wrong, but it leaves out a lot of the details that actually matter in probate court.

The truth is, that simply meddling in a Will is not enough to raise serious questions about that document’s authority over the estate of the deceased.

For example, if one sibling has a parent’s ear and uses that influence to shift the division of assets in their favor or even cut rival siblings out of the Will altogether, that’s not necessarily undue influence. It’s just one child making the case for why they deserve more, and winning the parent writing the Will over to their way of thinking.

The key to undue influence cases is that they are all about power—who has it, and who doesn’t.

Undue influence isn’t just about someone getting their way by expressing their opinion. It’s about a person in a position of power manipulating someone who is vulnerable in a way that takes away the vulnerable person’s free will.

One common example illustrating this is undue influence exerted by new spouses or love interests. In such cases, the new spouse/step-parent typically uses threats, guilt, or emotional blackmail to sway an elderly or otherwise compromised spouse to change their Will in a way that leaves less to the children in the family and shifts the bulk of the inheritance to the spouse.

However, spouses and lovers are not the only ones who can exert undue influence. Children, obviously, may have the opportunity, as well as trusted service providers like lawyers, doctors, therapists, and others. Sometimes, it’s a relative, friend, or caregiver who takes advantage of a Will-maker, who is either physically or mentally unwell and may be vulnerable to the influence of an opportunistic individual.

The key in any of these scenarios is that the person exerting the undue influence is in a position of power, and the Will-maker is somehow vulnerable.

Examples of how undue influence is perpetrated in this manner may involve:

Simple harassment and emotional abuse/blackmail (like a child telling an elderly parent they won’t be allowed to see their grandkids in order to influence the terms of the Will)
The withholding of sex (in romantic relationships), affection, or care
Physical abuse

Proving Your Case – A Complex Affair

If someone suspects that undue influence played a role in a Will, they can contest the Will or dispute a trust in probate court. However, the burden of proof falls on the person claiming undue influence was a factor. The deceased is obviously unable to clarify his or her intentions, so the case to prove undue influence typically relies on the testimony of multiple witnesses who can speak to the deceased’s relationships, health, state of mind, and intentions.

When building a case, there are a number of “red flags” that courts may look for as evidence of undue influence:

- Dependence — In many cases, the Will-maker is somehow dependent upon the person exerting undue influence. This may be financially (as in the abuser controls the person’s finances), or it may be in terms of care including things like access to medications or services or even sleep.

- Isolation — Keeping friends, family, and even caregivers at arm’s length is another common tactic of abusers exerting undue influence. By isolating the Will-maker, the abuser can not only avoid interventions from loved ones, but also ensure they are controlling every aspect of the Will-maker’s life.

- Vulnerability — In most undue influence cases, the victim is somehow compromised. This may be due to incapacity, illness, age, impaired cognitive function, or other similar conditions.

- Coercion — The abuser may use intimidation or they may wield affection like a weapon to influence the outcome they want. In either case, the act is one of manipulation.

You might notice that an inequitable Will is not, on its own, proof of undue influence. Someone changing their Will in an unexpected way—even late in life—is not enough for a court to rule that there was undue influence.

Avoiding A Court Battle – A Proactive Approach

The most effective way to avoid court battles over the possibility of undue influence is to be proactive about having important conversations about Wills and other estate planning . Keeping the lines of communication open and being honest is the best way to ensure that there are no surprises later on.

If there is concern that a family member is in a vulnerable position and may be susceptible to undue influence, it’s a much wiser course of action to get out in front of any problem instead of waiting to see what happens.

And, if you believe that a loved one may have been a victim of undue influence, you can also reach out to our litigation team for guidance. We have had much success in these types of cases and would be happy to give you a hand.

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