One of the goals in creating a comprehensive estate plan is to maintain family harmony after your death. Typically, with an estate plan in place, you have the peace of mind that your declarations will be carried out, as required by law. However, if someone is found to have exerted “undue influence” over your final decisions, a family member may challenge your will.
Defining “undue influence”
Undue influence is an act of persuasion that overcomes the free will and judgment of another person. It’s important to recognize that a certain level of influence is permissible, so long as it doesn’t rise to the level of “undue” influence. For example, there’s nothing inherently wrong with a son who encourages his father to leave him the family vacation home. But if the father was in a vulnerable position — perhaps he was ill or frail and the son was his caregiver — a court might find that he was susceptible to undue influence and that the son improperly influenced him to change his will.
To help avoid undue influence claims and ensure that your wishes are carried out:
Use a revocable trust. Rather than relying on a will alone, create a revocable, or “living,” trust. These trusts don’t go through probate, so they’re more difficult and costly to challenge.
Establish competency. Claims of undue influence often go hand in hand with challenges on grounds of lack of testamentary capacity. Be sure to create your estate plan while you’re in good mental and physical health. Have a physician examine you at or near the time you execute your will and other estate planning documents to ascertain that you’re mentally competent. Establishing that you are “of sound mind and body” when you sign your will can go a long way toward combating an undue influence claim.
Avoid the appearance of undue influence. If you reward someone who’s in a position to influence you, take steps to avoid the appearance of undue influence. Suppose, for example, that you plan to leave a substantial sum to a close friend who acts as your primary caregiver. To avoid a challenge, prepare your will independently — that is, under conditions that are free from interference by all beneficiaries. People who’ll benefit under your estate plan, including family members, shouldn’t be present when you meet with your attorney. Nor should they serve as witnesses — or even be present — when you sign your will and other estate planning documents.
Talk with your family. If you plan to disinherit certain family members, give them reduced shares or give substantial sums to nonfamily members, meet with your family to explain your reasoning. If that’s not possible, state the reasons in your will or include a separate letter expressing your wishes. Family members are less likely to challenge your plan if they understand the rationale behind it.
To deter challenges to your plan, consider including a no-contest clause, which provides that, if a beneficiary challenges your will or trust unsuccessfully, he or she will receive nothing. Keep in mind, however, that you should generally leave something to people who are likely to challenge your plan; otherwise, they have nothing to lose by contesting it.
Fortifying your estate plan
If you have questions regarding undue influence, contact us. We’d be pleased to review your circumstances and help determine if revisions to your estate plan are needed.
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