One basis under which a will may be contested is that someone asserted undue influence over the will’s author (the "testator"). Undue influence generally means that an individual coerced a testator into including provisions in their will that benefited that individual and did not reflect the testator’s true desires. However, simply persuading a testator to write or revise their will in a certain manner does not rise to the level of undue influence. Instead, a court will look for evidence that the influencer took advantage of the testator.
For example, a will contest for undue influence may assert that the testator’s lawyer took advantage of the testator’s trust in the lawyer and their own lack of knowledge and drafted a will that left the lawyer a large sum of money. A will contest may alternatively accuse a caretaker of taking advantage of the testator’s declining health or memory and helping them draft a will to the caretaker’s advantage.
Evidence of Undue Influence
Usually, an individual contesting a will (sometimes called a "contestant") for undue influence will rely heavily on circumstantial rather than direct evidence because undue influence often happens behind closed doors. They may introduce evidence of the testator’s vulnerability, such as their age, intelligence, emotional distress, or weakened mental state. They may also introduce evidence relating to the influencer’s power or authority over the testator. For example, a contestant may show that the influencer was controlling the necessities of the testator’s life, such as their housing, health care, and finances. They may also show that the influencer used affection, coercion, or threats to control the testator’s decisions.
Factors That May Demonstrate Vulnerability
The relationship between the parties
A showing of motive or opportunity may be helpful in crafting a successful argument for undue influence, but this will probably not be sufficient on its own. A contestant may be more successful if they can show that the testator’s will was contrary to what might be reasonably expected under the circumstances or that it was otherwise inequitable. For example, evidence that the testator’s children would naturally inherit the testator’s property, but the testator left all property to their friend when there was no prior evidence that the testator intended to disinherit their children may raise questions of undue influence.
A Rebuttable Presumption of Undue Influence
A rebuttable presumption of undue influence may arise under some state laws if a confidential or fiduciary relationship existed between an individual and the testator. A contestant may be able to allege any kind of fiduciary or confidential relationship, but some state laws provide only for certain relationships, such as an attorney-client or guardian-ward relationship.
General Rebuttable Presumption Elements
1There was a confidential or fiduciary relationship between the testator and another individual
2The individual had the opportunity to influence the testator’s decisions
3The individual benefited from the testator’s decisions
Once a contestant satisfactorily proves that such a relationship existed, they may also be required to prove that the individual had the opportunity to assert undue influence when the will was executed, that the individual played an active role in preparing the will, and that the provisions beneficial to the individual were different from what might otherwise be expected under the circumstances. If the contestant is successful in showing evidence to create a rebuttable presumption of undue influence, the burden then shifts to the other party to produce evidence that the will was not the product of undue influence.
Defending a Will Contest Based on Undue Influence
Evidence that a will was not the product of undue influence may include evidence that the alleged influencer was not exerting inappropriate power or authority over the testator at the time that the will was executed. For example, the lawyer who prepared the will or a witness who signed the will may testify that the testator was exercising their own free will and that the alleged influencer did not play a role in the drafting or execution of the will. A doctor’s testimony may also be helpful in showing that a testator’s mental capacity would not likely have made them susceptible to undue influence.
Evidence of a reasonable explanation for the disposition of assets may also be persuasive. For example, a witness may testify that an heir left out of the will was actually given substantial gifts by the testator during the testator’s life, leading to the reasonable conclusion that the testator sought to even out the gifts by awarding more assets to other heirs in their will.