Of course, you expect the declarations in your will to be carried out, as required by law. Usually, that’s exactly what happens. However, at other times, your will could be contested and your true intentions defeated if someone is found to have exerted “undue influence” over your decisions.

Undue influence defined

Undue influence is an act of persuasion that overcomes the free will and judgment of another person. It may include exhortations, insinuations, flattery, trickery and deception.

Frequently, undue influence happens when an elderly individual, who may or may not have all of his or her bearings, is convinced to change provisions in a will or otherwise suddenly rewards another person, such as a caretaker. This type of deceit has on more than one occasion been alleged by the children of a divorced parent who claim that the spouse of a second marriage has convinced the parent to “cut them out of the will” or reduce their inheritances.

Conversely, not all influence is “undue.” For instance, it’s perfectly reasonable for a child or close friend to advise an elderly person to sell off assets that have peaked in value or a vacation home that’s no longer being used. It’s usually up to a court to decide if the “suggestion” constitutes undue influence.  

But don’t confuse undue influence with “duress.” Duress is the use of force, or the threat of force, to coerce someone into taking an unintended action. It’s a crime that’s punishable by authorities.

Elements of undue influence

Generally, an interested party lodges a claim for undue influence when a deceased person’s will is being probated. To be successful, he or she typically must prove the following elements:

• The will distributes assets in a way that wouldn’t be reasonably anticipated. For instance, the will might leave out close family members without any explanation, while including virtual strangers.
• The deceased relied on or trusted the person who allegedly exerted undue influence.
• The deceased’s physical or mental condition made him or her susceptible to undue influence.
• The accused person benefits from changes in the will or some other suspicious transaction.

Protect against claims

While you’re of sound mind and body, there are several steps you can take to protect your estate against undue influence claims. These practical suggestions may ensure that the objectives in your will are met:

Establishing competency. The best way to do this is to draft your estate plan while you’re still in reasonably good health. Arrange for a physical examination around the time your will is executed. This is equivalent to a physician “signing off” that you’re competent.

Communicating clearly with family. Claims of undue influence may arise when relatives are blindsided after you’re gone. Let them know your intentions as soon as possible and explain your reasoning. These discussions may be corroborated by your will or a letter of instruction detailing your wishes.

Also, consider adding a no-contest clause to your will. This provision penalizes someone for unsuccessfully contesting the content of your will. However, you don’t want to go overboard: If you suspect a relative may challenge your competency, you still might arrange for that person to receive some assets in any event.

The benefit of the doubt

Of course, there are no guarantees that your name won’t be dragged through the mud in open court, despite these precautions. Nevertheless, the steps outlined above may avoid confrontations and place interested parties on notice that you’ve addressed the situation. The mere fact that you’ve taken action will be recognized in your favor. Contact your estate planning advisor if you’re concerned that your estate may someday come under an undue influence claim.