elder man sitting with his hands crossed over his forhead

Clear intentions are a priority when planning your estate. Your estate planning documents need to be able to outline your wishes and illuminate a path to action that reflects what you had in mind.

In order to create these plans and make sure that they are properly carried out, it requires the assistance of an elder law attorney, who can help navigate you through the complicated ins and outs of the process.

You need to be able to trust in an elder law attorney’s experience and understand that they are there to help make sure that your wishes are realized. The intricacies of the estate planning process make it necessary to have a trusted source of guidance, who can remain impartial during a time when many may attempt to persuade you toward their thinking.

What is undue influence?

Undue influence can be an issue when you are forging an estate plan. Someone can imposing undue influence on you, the testator, if they are attempting to impose their will on your decisions, in order to take advantage of your vulnerability.

Undue influence may occur when it leaves the assets in a will in a way that would not have been expected, given the circumstances of the situation. This could include caretakers or someone outside of the immediate family, receiving a larger sum of assets than family members or loved ones.

The situation involved in becoming a victim of undue influence may be related to your health. If you have recurring health problems, have found yourself in any type of isolation, or experience falls due to frailty, the aggressor of undue influence can seem like the only one willing to care of you in your time of need.

During these types of circumstances, you may find yourself dependent on them, wishing to return their kindness with some sort of repayment, or they may simply be advising you to revisit your estate planning documents in case anything were to occur.

Whatever the case may be, proving undue influence after it has already occurred can be half of the battle. Your intention in your will will be scrutinized in probate court, which is why it is the responsibility of your elder law attorney that your estate planning documents are able to hold up in court.

Proving undue influence

If your true intentions do not reflect the estate planning documents, then you are going to want the documents to be proven invalid, due to undue influence. Your wishes matter, and while you may have a  child or a caregiver that you wish to take care of after you die, you cannot allow their will to dictate your plans. That is not reflective of your wishes and takes your agency away.

The court will look to witnesses that can testify to your wishes and your state of mind when you were crafting these documents. These witnesses can include friends, family, and health care professionals that can speak to your mental capacity and overall health. They can talk about experiences they may have witnessed, where the aggressor may have been exerting their will through isolation or control, in order to achieve their desired outcome.

While having several individuals testify to the occurrence of undue influence is helpful to the case, it does not ensure that it is proven. The burden of proof on undue influence tends to be higher.

The court essentially is invalidating the estate planning documents, when they are confirming the existence of undue influence. This is not something that is taken lightly, which is why it is important to make sure that you are not a victim of it, leaving this process to your loved ones.

Own your estate plan

You need to ensure that you include trustworthy individuals in your life as you age. While expressing concern over health or estate planning issues, they need to be able to respect your boundaries, and you need to take ownership of your estate plan with the assistance of your elder law attorney.

Understanding Undue Influence