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What factors can lead to an undue influence presumption?

On Behalf of | Jan 12, 2024 | Probate Litigation

Executing a will is an essential part of probate, which can also help the court and the surviving family decide what to do about the deceased’s estate. This document should be a source of guidance and solace, but there can be scenarios when family members must go to court to contest the will. Various details surrounding the document’s creation can be valid reasons to do so, such as information leading to the presumption of undue influence.

Undue influence happens when someone else uses coercion, manipulation, force or fraud to control what the testator wrote in their will. It can be a valid reason to contest a will, but proving it might be challenging based on the situation. The court often considers various factors before presuming the existence of undue influence, including the following facts and actions committed by an involved party:

  • Presence during the creation and execution of the will
  • Suggesting or recommending an attorney to draft the will
  • Knowing about what is in the will before its execution
  • Being an intermediary relaying instructions to the attorney for the testator
  • Choosing witnesses to the will on behalf of the testator
  • Becoming the will’s keeper before its execution
  • Taking measures to isolate the testator before their death
  • Having a severe mental advantage over the testator
  • The will’s content, whether the instructions are reasonable

Other factors can apply depending on the unique circumstances of the will.

Knowing when to contest a will

When deciding whether to contest a will, receiving legal counsel before taking any action is crucial. Having guidance could help determine if taking the case to court is a reasonable course of action. Additionally, legal insight can be valuable in vetting options and remedies while addressing issues that can arise.