Estate Lawyers

Have you ever attended a reading of a loved one’s will and thought, ‘what were they thinking when they wrote this?’ If you have serious doubts about the validity of a will because of the vulnerability of the deceased when the will was created, you may be able to voice your concerns before a probate judge.

It is not uncommon for an elderly family member to be influenced by a relative or friend with their own best interests at heart and not the wishes of the elderly person creating the will. This type of undue influence can be considered elderly abuse and it can be contested in front of a probate judge who could if proof is presented, deem the will or trust to be invalid.

What is Considered Undue Influence?

Even if there is a trust and the estate is not required to go through probate in order to distribute the assets of the deceased, the document can still be contested. The person or persons disputing the validity of the document must have proof that:

• Because the elderly person was sick or frail, it was easy for someone to influence or pressure them into creating a will or document that would most benefit the person influencing the frail, sick individual and not listening to the requests of the will-maker
• The document distributes assets in a totally different manner than everyone expected; for example, close friends or family were surprisingly left out of the will without explaining why, and others were given assets that family members questioned the reasoning behind the distribution of the estate
• The will maker trusted the individual who greatly influenced the creation of the will

It is okay and legal to provide guidance to someone creating a will. A relative can give their opinion about who gets what from the estate, but as long as the will creator is of sound mind, they are assumed to be able to make decisions about their estate.

If someone is in control of a sick or frail elderly person’s finances and living conditions, they may also be able to use undue influence in the creation of the estate. Anyone mentally or physically sick may be more apt to be influenced by someone else in an improper manner.

How Do You Prove the Will Was Created Under Excessive Influence?

Proving that the deceased’s will was created under the undue influence is not easy. Obviously the deceased cannot speak about why they made the choices they made concerning their will. The court will have to turn to witnesses that were close with the deceased, or caregivers, the deceased’s doctors or other close relatives to determine the relationship between the person who is accused of pressuring the deceased to create a will that will benefit themselves as opposed to the will of the deceased.

If your loved one is still alive but you suspect their caregiver or someone that spends a lot of time with them is taking advantage of your loved one, speak up. Understand the mental condition of your elderly loved one and if it is clear they are not able to make sound financial or general life decisions, it may be time to appoint a guardian or a loved one who is trusted by the family to take care of your loved one.