One of the defenses to the admission of a Will is the theory of undue influence. Prevailing on this theory can invalidate the admission of the Will.

In Michigan, to prove undue influence, a person must show that the person that signed the Will (the testator) was subjected to “threats, misrepresentation, undue flattery, fraud, or physical or moral coercion sufficient to overpower volition, destroy free agency and impel” the testator to act against her inclination and free will.  “Motive, opportunity, or even ability to control, in the absence of affirmative evidence that it was exercised, are not sufficient” (see the Court of Appeals case In re Karmey).

Influence alone is not sufficient. The key word is undue. As an example, Michigan law recognizes that a spouse has tremendous influence over another spouse.  That alone does not necessarily rise to meet the threshhold of undue influence.  “The core legal principle that there must be proof of actual undue influence, which cannot be presumed merely from a marital relationship, evolved over time, resulting in a widely-applied, three-factor test governing a presumption of undue influence.” (see the Court of Appeals case In re Karmey)

The three factor test is as follows.  A presumption of undue influence can be created upon the introduction of evidence which would establish (1) the existence of a confidential or fiduciary relationship between the grantor and a fiduciary, (2) the fiduciary or an interest which he represents benefits from a transaction, and (3) the fiduciary had an opportunity to influence the grantor’s decision in that transaction.  Establishment of this presumption creates a mandatory inference of undue influence, shifting burden of going forward with contrary evidence.

Other than mental capacity, the most consistent challenge to a Will and Trust is a claim of undue influence. We all have influence over our loved ones. But, is it undue?

Simply put, undue influence occurs when a person overcomes the free will of the trust settlor (hereinafter “settlor”), influencing him into a transaction that he would not otherwise have made and that benefits the influencer. There is generally a high bar for proving undue influence. It is often difficult to prove because people usually do not exert such influence in the presence of others or in an overt or direct manner.

To prove undue influence it must be shown that an influencer had motive or opportunity to exert influence, that the influencer did so exert undue influence, that the influence overcame the will of the settlor and that it resulted in a benefit to the influencer that he would not otherwise receive.

Like with capacity, undue influence must be proven based on a number of factors being present (often called a totality of the circumstances). There will almost never be blatant undue influence and even evidence of a direct and express persuasion by influencer may pass the smell test if the evidence does not tend to show that the settlor’s free will was overcome. Instead a person trying to prove it will need the evidence to paint a picture of vulnerability, trust, dependence, control, isolation, estrangement and if possible direct or implied instances of persuasion or force, that over a period of time led the settlor to change his estate plan in a manner he would not have otherwise chosen.

it often arises as a result of a trusted relationship. Therefore, in certain relationships the law implies a presumption. These relationships are labeled as confidential or fiduciary. Examples are attorney-client, doctor-patient, agent-principal (power of attorney). The presumption does not change the ultimate burden of proof of the person challenging the estate plan, can be overcome with contrary evidence.

The Probate Pro can help evaluate your prospective Will Contest case.

The Probate Pro is passionate about assisting people involved in Will and Trust contests. Please call The Probate Pro at 1 (833)PROBATE.