Wills are an essential part of estate planning. A clearly written, comprehensive will can certainly relive grieving family members of confusion and misunderstandings. But what happens after the will is drafted and then changed due to the influence of a loved one, family member or caretaker?
The California Probate Code and California Welfare and Institutions Code define undue influence generally as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.”
Primarily this means the maker of the will was vulnerable, incapacitated, ill, disabled, injured, lacked education or had impaired cognitive function or emotional distress, or suffered from isolation or dependency. What comes into question is whether the influencer knew or should have known these things.
The court may ask whether the influencer had “status as a fiduciary, family member, care provider, healthcare professional, legal professional, spiritual advisor, expert, or other qualification.” Other things that may be called into question are the influencer’s conduct and whether that person had control over the life, medication, access to family, access to information, or sleep of the family member.
The court will seek to assess whether the family member who made the will was coerced or intimidated into making changes to the will. The court will also ask whether there was “haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.”
In addition, the court will attempt to uncover the following:
- The economic consequences of the change
- The drafter’s prior intent
- How appropriate the changes to the will are in light of the “length and nature of the relationship” between the original will drafter and the person who may have had undue influence on any amendments made to the legal document.
Because much of what happens occurs behind closed doors and without any witnesses, courts allow circumstantial evidence to be used to prove undue influence. However, the best way to assess whether or not a loved one has been susceptible to undue influence is to have a qualified attorney review the case. If you are concerned about your loved one’s choices, speak with a legal professional.