A valid Last Will and Testament must be the free expression of the maker’s desire. Therefore, if a Will is obtained through undue influence, it is likely invalid. Undue influence contemplates that the testator’s mind was so controlled by persuasion, pressure, and outside influences that he or she did not act voluntarily, but was subject to the will of another when execution took place.
The burden of proving undue influence is generally on the contestant of the Will. However, a presumption of undue influence may exist when:
If such factors exist, the burden may then shift to the proponent of the Will to prove that undue influence did not exist.
If you believe that undue influence existed and plan on contesting a Will, or there is a need to defend an allegation of undue influence, you should retain the services of an attorney experienced in will contest matters. There is extensive caselaw in these types of matters and the facts and circumstances, evaluated against such caselaw, can affect the ultimate outcome.
by Kirk T. Bauer, Esq.