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Contesing Wills or Trusts – A primer on undue influence and lack of capacity

Typically people accomplish their estate plans through use of documents such as a will or a trust.  A challenge to the disposition set forth in a will or trust can be based on the assertion that the person who made the will or trust lacked capacity or that undue influence was used upon that person.

The party challenging a will or trust is usually the person who would have received all or part of the estate if the will or trust is voided. The alleged “wrongdoers” are usually a relative, “lover”, charity, religious organization or other entity who takes all or part of a person’s  estate to the exclusion of that person’s family, heirs, or “recipients” under a will or trust which predated an invalid will or trust.

Lack of Capacity
In challenges based on lack of capacity, the primary factual determination is whether the person who made the will or trust possessed sufficient mental qualities when the document was signed. The mere fact that a person is aged, uneducated or inexperienced, sick or under a conservatorship, or otherwise “vulnerable” does not prevent that person from making a will or trust. A person’s impairment in performing daily living activities or other degrees of cognitive impairment may reflect a person’s capacity only in a general way.

Did a person who made the will or trust have capacity? As regards a will, the person must merely have had sufficient capacity (1) to know and understand the scope and meaning of the provisions of the will (i.e. the person must understand that he is giving instructions for the disposal of his property after his death); (2) to know and understand the nature, extent and condition of his or her estate and property (i.e. not actual knowledge but capacity to know and understand); (3) to know and understand the relation to persons who ordinarily would be natural objects of his or her bounty. This capacity is less stringent than the capacity necessary to enter into a contract or to conduct business affairs.

Essentially, to successfully challenge, it must be proven that the person was not of sound mind and memory regarding these matters at the time the will was signed. Evidence regarding that person’s condition at the time of execution, as well as before and after execution, is relevant insofar as it shows the state of mind and memory when the will was signed.

Proof of lack of capacity arguably must be supported by medical records and a medical expert. Dementia, a disease with numerous causes and which includes Alzheimers disease and vascular dementia, is a common basis used to challenge a testamentary document. Any significant decline and impairment in memory, intellect and personality may serve as a “mind disorder” interfering with capacity. Lack of comprehension and judgment, long term memory problems, and inability to communicate are common signs of lack of capacity.

Undue Influence
The execution of a document must be a voluntary act. A person has the right to be free in disposing of his or her estate, which includes the right to be mean, unfair, unreasonable, whimsical or carefree. Such motives alone are not a basis to challenge a document.

However, assume someone provided substantial attention or assistance to the person who made the will or trust, presumably along with advice and persuasion, which somehow works to the exclusion of “deserving” others. If the document is a product of undue influence used on the person who made the will or trust, it is void.

What is undue influence? There must be proof of conduct that amounts to a constraint overpowering the intensions of the person who made the will or trust, such that the person did not act voluntarily and freely but instead expressed the purpose and intent of the influencer in signing the document.

Undue influence has been  defined as substituting the intentions of the influencer for those of the person who made the will or trust, making the document express the purpose and intent of the influencer, and not the person who made the will or trust. It has also been defined as equivalent to moral coercion or constraint overpowering the intentions of the person who made the will or trust, and must operate at the time of the signature of the document.

Factors considered in determining undue influence include the following:

  1. The influencer’s opportunity to exercise influence;
  2. Exercise of influence or persuasion by the influencer regarding the transaction;
  3.  Active participation in the transaction by the influencer;
  4. A disinheritance or taking from those who probably would be remembered by the person who made the will or trust; and
  5. The transaction benefits the influencer.

It must be proven that substantial influence was exerted so as to cause the person who made the will or trust to cease to act of his or her own volition at the time the document was signed. Direct evidence of undue influence usually is not available, and thus circumstantial evidence may be sufficient to prove the undue influence. Thus, persistent conduct of the influencer, along with proof of change in intentions of the person who made the will or trust benefiting the influencer, may be sufficient to set forth a case. Of course, proof of loss to “deserving others” is helpful.

The potential interplay between analysis of capacity and of undue influence is important. Even assuming inability to prove lack of capacity, a “diminished capacity” or other mental or physical condition may render a person vulnerable and susceptible to undue influence. A person’s susceptibility to influence makes the exercise of influence more likely “undue”. This susceptibility is often the crux to proof of undue influence. Needless to say, there are circumstances where an influencer takes advantage of a susceptible and vulnerable person, and the disadvantage to “heirs” is so inequitable or so defies common sense that proof of undue influence is more readily accomplished.

Proof of these cases can be a challenging exercise in investigative, medical and legal work. Determination must be made regarding the challenge to be made, how it is to be made, and whether the challenge is to the entire document or just a part thereof.