What Is Undue Influence?

Female attorney pointing to document man is signing.Saying that there has been "undue influence" is often used as a reason to contest a will or estate plan, but what does it mean?

Undue Influence Definition

Undue influence occurs when someone exerts pressure on an individual, causing that individual to act contrary to his or her wishes and to the benefit of the influencer or the influencer's friends. The pressure can take the form of deception, harassment, threats, or isolation.

Often the influencer separates the individual from their loved ones in order to coerce. The elderly and infirm can be especially susceptible to undue influence.

How to Prove Undue Influence in Estate Planning

To prove a loved one was subject to undue influence in drafting an estate plan, you have to show that the loved one disposed of his or her property in a way that was unexpected under the circumstances, that he or she is susceptible to undue influence (because of illness, age, frailty, or a special relationship with the influencer), and that the person who exerted the influence had the opportunity to do so.

Generally, the burden of proving undue influence is on the person asserting undue influence. However, if the alleged influencer had a fiduciary relationship with your loved one, the burden may be on the influencer to prove that there was no undue influence. People who have a fiduciary relationship can include a child, a spouse, or an agent under a power of attorney.

When drawing up a will or estate plan, it is important to avoid even the appearance of undue influence. For example, if you are planning on leaving everything to your daughter who is also your primary caregiver, your other children may argue that your daughter took advantage of her position to influence you.

To avoid the appearance of undue influence, do not involve any family members who are inheriting under your will in drafting your will. Family members should not be present when you discuss the will with your attorney or when you sign it. To be totally safe, family members shouldn't even drive or accompany you to the attorney's office. You can also get a formal assessment of your mental capabilities performed by a medical professional before you draft estate planning documents.

Additional Resources

Learn more about how to prevent a will contest and about how to contest a will

Be sure to consult with a qualified estate planner in your area for guidance on drafting wills, estate plans, or other legacy planning documents so that they can ensure your wishes are followed.

Contact us

Questions? Contact us at Michael B. Cohen & Associates

Michael B. Cohen & Associates
12201 Merit Drive | Suite 230 | Dallas 75251
Phone: (214) 720-0102
http://www.dallaselderlawyer.com