One of the ways that a will can be successfully challenged is to prove that the person making the will (the “testator”) was under “undue influence” at the time the will was made. This essentially means proving that someone injected himself or herself into the testator’s life, and had so much power over the testator, that the testator’s will reflects not the desires of the testator, but the desires of the person controlling him or her.
In order to win on a claim of undue influence, the person challenging a will has to show four different things:
- That the testator was vulnerable to overreaching. For example, that the person making the will was mentally or physically disabled, and that because of this, he or she was unusually likely to be taken advantage of.
- That the accused had an opportunity to exercise undue influence. Usually, this is done by showing that the person accused of taking advantage of the testator had an especially close relationship with him or her.
- That the accused showed an inclination to actually exercise undue influence. It’s not enough to just show that the accused was in a close relationship with the testator. There have to be some actions on the part of the accused that indicate he or she intended to take advantage of the testator. Examples of this behavior can include isolating the testator, keeping others from visiting; demanding that the testator use a particular attorney to make a new will; and insisting on being involved in the process of making the will.
- That the making of the will was a “suspicious transaction”. There has to be something in the will that’s out of the ordinary, and that the testator never would have initiated on his or her own. For example, cutting children out of the will in favor of a new caregiver with whom the testator has become close might qualify as a suspicious transaction.
It’s not enough to simply disagree with the will, or even to prove only a couple of these things – all four elements have to be proven before a court will declare a will (or a provision in a will) invalid.
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