Before one considers filing an undue influence claim seeking to set aside a change in a Will or a recent transfer which reduces his or her share in an estate, there are a number of important factors to consider. In order to address the obvious proof problems in filing such a case, Courts have created a presumption of undue influence where there exist certain factors such as a confidential relationship between the testator/donor and the recipient of the gift along with suspicious circumstances surrounding the change in disposition.  

Courts will look to the following factors, where applicable, to assist them in finding the presence of undue influence:

1.    whether the beneficiary was assisting the testator or donor in making medical or financial decisions;

2.    whether the beneficiary was paying bills on behalf of the testator or donor;

3.    whether the testator or donor relied on the beneficiary for advice in making decisions;

4.    whether the beneficiary was present at the execution of the will or the change in beneficiary designation;

5.    whether the beneficiary was present when the testator expressed a desire to make a will or to change the beneficiary of an account;

6.    whether the beneficiary recommended the attorney who drafted the will for the testator;

7.    whether the beneficiary recommended the bank officer or broker who drafted the change in beneficiary for the donor;

8.    whether the beneficiary had knowledge of the contents of the will or the beneficiary change prior to its execution;

9.    whether the beneficiary was involved with speaking to the attorney about the preparation and contents of the will prior to its preparation;

10.    whether the beneficiary was involved with speaking to the bank officer or broker about the preparation and contents of the change in beneficiary prior to its preparation;

11.    whether the beneficiary was involved in securing witnesses to the will;

12.    whether the beneficiary was in charge of safekeeping the will or the beneficiary change subsequent to its execution;

13.    whether the beneficiary secreted the will or beneficiary change from other beneficiaries;

14.    whether the beneficiary isolated the testator or donor from other family members; and

15.    whether the beneficiary disparaged other family members to the testator or donor.

The filing of an undue influence case often involves strategic decisions that are best handled by attorneys specializing in probate litigation matters. There are often statutory time frames which must be met in asserting a claim of undue influence, and therefore, if suspicion arises, an attorney should be consulted immediately so that such a claim may be evaluated and if necessary, a timely complaint filed.