What is Undue Influence and How Can it be Proved?

By Alan Fanger

Taking care of a deceased person’s assets and business affairs adds stress to an already emotional situation. Adding to the anxiety, families sometimes discover their loved one has been taken advantage of. A vulnerable elderly person is easy prey to someone who wants to manipulate them by seeking to be a beneficiary of their estate. If a family member suspects this has occurred, do they have any legal recourse? Yes. The will can be challenged in probate court under the claim of undue influence. Or, in the case of a trust,  a lawsuit can be brought in either the Probate Court or the Superior Court.

Undue Influence Defined
As the name implies, undue influence means the surviving relative can prove that the deceased person was influenced in a manipulative way. Essentially, the deceased person’s natural impulse was changed at the encouragement of a person who was trying to benefit themselves. Below are three general circumstances where undue influence is suspected.

1. The will left assets in an unexpected manner. For example, if close family members were left out and another person was added in their place, with no obvious reason.

2. The will-maker had a “confidential relationship” with the alleged manipulator. For example, an elderly person may be particularly dependent on a nurse or in-home caregiver, a person trusted by the deceased.

3. Illness made the elderly person especially vulnerable.

Proving undue influence can be difficult.   As our courts have noted,  undue influence often occurs in very subtle ways, outside the immediate viewing or accessibility of its victims.  Thus, the court must rely on witnesses to testify about the relationship between the alleged influencer and the deceased.

A distinction can be drawn between strong persuasion and undue influence. Consider two examples:

An elderly man regularly calls his niece and complains about how his children do not care for him; the niece suggests he cut them out of his will. If the man is mentally and physically independent, he can choose to follow her advice or not. Her unsolicited opinions would not constitute undue influence. However, the situation would be different if the man was suffering from some type of illness, especially one that affects his ability to reason, understand or remember.  So if that same niece profiled above moved in with the man to take care of him, tried to detach him from other families members and encouraged him to draft a new will that favored her, these circumstances would raise suspicions that undue diligence was involved.

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