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Undue influence

Claims of undue influence difficult to prove because of lack of evidence

by Steven Gnewkowski Esq. | Contributor
December 17, 2018

The existence of undue influence in the creation of an estate plan is a common allegation but difficult to prove. In most cases, there is a lack of reliable evidence available. However, in some obvious cases, a presumption of undue influence can arise, and if some critical facts are established, it may be worth contesting the validity of a will or trust.

The allegation that a family member was inappropriately compelled to include or omit a beneficiary from an estate plan is often raised, but in reality is difficult to prove. There are several reasons why this is the case.

Undue influence is hard to prove

First, direct evidence of misconduct, such as eyewitness testimony, that would serve to support the contention that the testator was persuaded to favor a certain individual over others, rarely exists. Undue influence tends to occur behind closed doors without witnesses present.

Second, the courts have long held that evidence of opportunity alone does not permit an inference that undue influence occurred. The mere fact that a particular person spent a great deal of time with the testator does not in and of itself give rise to a presumption that such a person unduly pressured the testator into drafting or revising an estate plan in a way that would inure to the benefit of that person.

Third, the allegation is typically brought after the testator is deceased. It is only then that one or more family members expecting to be included among the beneficiaries are surprised to find out for the first time that they will not be receiving the share they were expecting. Unfortunately at this point, the testator is not available for further questioning.

So while in many cases there may be a lack of reliable evidence available to support a claim of undue influence, the law recognizes that in certain circumstances the contesting party may be entitled to a presumption of undue influence. Experience has taught that if certain evidentiary facts can be established, there is a strong likelihood that undue influence occurred, and may therefore be presumed, unless rebutted by other evidence.

The law will presume that undue influence has occurred, for example, where a patient makes a will in favor of his physician, a client signs a will naming the lawyer who drafted the document as a beneficiary, or a sick person leaves all of his assets to the clergyman attending to him. The presumption of undue influence arises from a confidential or fiduciary relationship, an opportunity to exercise influence, and the proof of a benefit to the alleged influencer.

Senior patient in a hospital bed being visited by a doctor

Relationships of inequality are inherently suspect, such as a guardian and ward, an agent and principal, or an attorney and client. These are situations where dominion may be exercised by one person over another. The contestant therefore needs to prove three critical facts to give rise to a presumption of undue influence.

First, that there existed a confidential or fiduciary relationship between the testator and the fiduciary; second, that the fiduciary (or an organization or party he represents) will benefit; and third, that the fiduciary had the opportunity to exercise influence over the testator's decision making. If the claimant can meet this burden of proof, the burden then shifts to the accused wrongdoer to offer evidence that may contradict and disprove the contention that any undue influence took place.

Since litigation is expensive, time consuming and often causes irrevocable damage to family relationships, in the absence of clear and convincing evidence, careful consideration should be given, and the advice of a qualified professional should be sought, before commencing a will or trust contest.

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at

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