When clients execute their Wills, attorneys typically ask the following questions, in some manner, to determine the client’s mental capacity to execute the Will and whether or not they are doing so freely:
- Does this Will accurately reflect your wishes for the distribution of your property?
- Did you have the opportunity to review and discuss this Will with your attorney?
- Has anyone subjected you to undue pressure or coercion to sign this Will?
- Are you of sound mind and clear presence to go forward?
As Jayne Sykora mentioned in her recent post on Mental Capacity, challenging a testator’s mental capacity is one way to contest a Will (she goes on to outline what is required for a testator to have the requisite mental capacity to execute a Will). However, another way to contest a Will is to claim that the testator acted under the pressure of undue influence.
Black’s Law Dictionary defines undue influence in relation to Wills & Estates as “Coercion that destroys a testator’s free will and substitutes another’s objectives in its place.”
Factors to consider if a testator was acting under undue influence are:
- the testator’s physical and mental condition;
- the person by whom the influence was exerted;
- the time, place and other circumstances surrounding the influence; and
- the effect of the influence on the testator’s mind and actions.
If there is suspicion that a person exerted undue influence over a testator, there must be evidence to prove that undue influence was in fact exercised and that the testator truly lost all free will in drafting his or her Will. Some questions to ask to determine if a Will was the result of undue influence are:
- Did the influencer participate in the drafting of the Will, i.e. was the influencer in the meeting with the testator and attorney; did the influencer make suggestions that were incorporated into the Will, etc.?
- Did the testator have a Will in place and, after time alone with the influencer, decide to dramatically change the Will?
- Did the testator make changes to a Will that significantly changed the testamentary disposition of the estate?
It is important to note that if a testator makes changes to the provisions of a Will, those mere changes are not enough to assert a claim of undue influence. It must be proven that coercion overtook the testator’s free will and a disposition contrary to the testator’s wishes was imposed.
