For most of us, a last will and testament is one of the most important legal documents we will sign during our lifetimes. It is an expression of our final wishes—quite literally, our will regarding our possessions, our minor children, our legacy.
It is no surprise, then, that disputes over inheritances are so common. One type of claim involves “undue influence.” Undue influence is a way to challenge the will because someone took advantage of the will-maker (or “testator,” in legal terminology) by using improper influence to get the testator to write the will in a way that benefits the person exerting the influence, rather than representing the testator’s true wishes.
Normal influence through close relationships is not enough to overturn a will. It must be undue influence—meaning the influencer suppressed the victim’s free agency and replaced it with his or her own. Many factors are relevant to that determination, including:
- Lack of Independent Advice: A beneficiary who participates in preparing the will generally has a duty to see that the testator receives independent, disinterested advice. Manipulation often occurs in confidential or fiduciary-like relationships where the victim completely trusts the influencer. The influencer may try to isolate the victim from family and friends, turning the victim against them. The level of control the influencer has over the victim can be an important factor. Did the victim have an opportunity to get independent advice about their decision-making, or was the influencer present for and controlling all discussions?
- Unexplained, Unnatural, or Unjust Changes to the Will: In a classic scenario of undue influence, the victim suddenly and inexplicably disinherits his or her loved ones, leaving the entire estate to the influencer (who is often an outsider to the family). Courts will look at the circumstances leading up to the change, such as whether the victim’s attitude towards family members suddenly changed after the influencer entered the picture.
- Secrecy and Haste: Was the new will made secretly, in a hurry? Did the victim consult with their own lawyer beforehand? Did the family even know about the change, or did a new will surface by surprise after the loved one’s death? Was the behavior out of character for the victim? For example, if a person would normally keep financial decisions private, the fact that the will was changed without telling family would not be as meaningful as if the person typically shared such information with a family member.
- The Victim’s Susceptibility to Influence: Undue influence and financial exploitation often go hand-in-hand. Seniors are often more vulnerable to such influence—especially if they’re experiencing memory loss, dementia or other health problems. If the influencer has taken on a role of caregiver due to physical or mental illness, the victim may be more susceptible to making changes requested by the caregiver.
Navigating undue influence claims in Oregon can be challenging. Much depends on the case’s unique circumstances. Working with an attorney who understands the nuances of estate law and litigation can help ensure that your loved ones’ genuine final wishes are honored.