It’s your will, so you can say whatever you want to say in it, or change any part of it, whenever you want to, right? Well, not quite. First, you’re bound to follow the prevailing laws of your state. Second, your will could be contested based on a claim that someone exercised “undue influence” over your decisions. Thus, your estate planning intentions, valid or not, may be defeated.
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 or deception. Frequently, undue influence occurs when an older individual is convinced by an heir to change provisions in his or her will that suddenly reward the family member. This type of deceit often is 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. It may also arise when a caretaker starts to call all the shots for an ailing patient. 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. In the event of a challenge, it’s usually up to a court to decide if the “suggestion” constitutes undue influence.
Elements of Undue Influence
Generally, an interested party with legal standing lodges a claim for undue influence when a deceased person’s will be being probated. To be successful, the claimant must prove certain elements, such as:
• 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 per-son who allegedly exerted undue influence.
• The deceased’s physical or mental condition made them susceptible to undue influence.
• The accused person benefits from changes in the will or some other suspicious transaction.
Assuming you’re still of sound mind, there are steps you can take now to protect your estate against undue influence claims. These suggestions may ensure that the objectives in your will are met:
Transfer assets to a revocable living trust. Because this trust type is exempt from probate, it’s less likely that its provisions will be challenged than bequests made under a will. In addition, the trust can accomplish additional estate planning objectives.
Establish your competency. The best way to do this is to create your estate plan while you’re still in reasonably good health. Arrange for a physical examination around the time your will is being drafted. This is equivalent to a physician “signing off” that you’re competent (at least at that time).
Discuss your intentions with your 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. Your will or a letter of instruction detailing your wishes can corroborate these discussions.
Consider the optics. Be sure to distance yourself, when appropriate, from someone who might be accused of undue influence. For example, if you’re leaving money to a caretaker who’s not a relative, don’t have that person witness the signing of your will or other estate planning documents.
As a last resort, add a “no-contest clause” to your will. This provision penalizes someone for unsuccessfully contesting the content of your will.
There Are No Guarantees
If your estate plan leaves any family members less of an inheritance than they expect, there’s a risk they’ll contest it. Although there’s no guaranteed way to protect your plan, the strategies discussed above can minimize the chances that a disgruntled beneficiary will challenge your plan in court.