Undue influence happens when Person A is able to persuade or coerce Person B to make or change their last will and testament so that it benefits Person A.
Typically Person A has control or power over the person who is making or changing their will (called the testator). Person A can be a neighbor, family member, friend or caregiver. Sometimes Person A is both a friend or family member and a caregiver to the testator.
An example of undue influence
For example, after his divorce, Pierre may move to the United States as part of a strategic career move. Pierre may find out he has a disease that is manageable. Pierre takes time off and stays at home to rest and hopefully regain his strength. He hires a live-in caretaker to help him with meals, laundry, errands and the like. Three months later when Pierre’s health takes a sad turn he creates a will. When he dies the next month his family finds out that he has left the majority of his assets to his caregiver.
Pierre’s adult children back home are perplexed. They had a good relationship with their father and assumed that his assets would transfer to them. This may be a case of undue influence, since the caregiver had access to Pierre who was in a weakened state. Pierre also was living abroad and staying at home, so he was isolated from his family and long-term friends.
What to do if you suspect undue influence
Understand what undue influence is and is not. Undue influence is not a person getting less than they thought from a trust or will. Undue influence is also not a person leaving a large sum of money or assets to a charity which they were very fond of. Undue influence happens when the testator is vulnerable and compromised and someone with power or control over the testator (such as a neighbor or caregiver) takes advantage of that. It is not uncommon for testators to leave some money or assets to a caregiver, but typically not the majority of these assets.
If a family member made suspicious last-minute changes to their will or trust it is important to take steps quickly. Contact an attorney who works in New York will contests. If there are international family ties, be sure to work with a firm with experience in overseas legal matters.