Think you have your estate plan all up to date and in place, right? You carefully scrutinized your will & revocable trust after evaluating who gets what when you’re gone. What could go wrong, right? If you think there may be an estate lawsuit over “undue influence”, or if you are involved in one right now, read on.
Pressure to sign a will or a revocable trust ????
UNDUE INFLUENCE — setting aside your estate plan
- I’m amazed at the number of people – disinherited family members-who are familiar with “undue influence.”
- If you think your estate plan is stable, think again.
- Disgruntled beneficiaries may seek to set aside your carefully crafted, high-priced estate plan based upon undue influence.
- And I’m not just talking about a son or daughter that you cut out.
- I’m talking about beneficiaries who may have been in prior wills or trusts that you decided to take out for personal reasons, and heirs or family members whose inheritance you only reduced (and didn’t cut out entirely).
Probate Litigation When You Are Gone
- It seems that probate litigation is a growth industry.
- Disputes surrounding inheritances, wills, trusts & probate matters appear to be increasing.
- People lawyer up and are more are apt to question fees, costs, and the actions of fiduciaries like trustees, attorneys in fact and estate executors (also called personal representatives.)
- They also seem to be more likely than ever before to engage in inheritance litigation: legal fights over your will, trust, bank accounts, investment portfolios and probate.
Where’s My Inheritance ?
- People have a misguided sense of entitlement to an inheritance.
- They expect to inherit from you and if they don’t, they want their day in court.
- One way to derail your estate plan is to allege that the will or trust which you signed was procured by undue influence.
What Is Undue Influence ?
- Undue influence is the basis to set aside a will, a trust, or any amendment to one of those estate planning documents.
- Undue influence can also be the basis to set aside a gift, a sale or any other transaction.
- In the world of probate litigation, undue influence is often one of the two most common attacks on a will or trust. The other being “lack of capacity” (meaning you did not know what you were doing when you signed that will or trust.)
Trying An Undue Influence Estate Case
- To win at an undue influence trial, that is, to set aside, or have a probate judge declare void, a will or trust document, you need a lot more than just mere allegations.
- Undue influence is a form of fraud.
- It is considered acts of lying, over-persuasion, coercion, duress, force, extreme pressure.
- That means that you need to allege it in your lawsuit with “particularity”, setting forth some specificity of who committed the undue influence, under what circumstances it occurred, and basic facts about when it happened.
- This can often be difficult for heirs or family members who file a probate lawsuit based on undue influence if they haven’t been involved in the life of the person who just died – who created the will or trust.
- In some cases, the family member who is alleging undue influence may live hundreds if not thousands of miles away. These cases can be difficult to prove at times.
Family Fights Over Money & Inheritances, Wills & Family Trusts
- Courts often look at the family dynamics and circumstances when judging these cases.
- If a ne’er do well son was cut out of an inheritance, that can be understandable. I
- f a doting, loving daughter who took care of mom or dad during their last illness receives more of the estate than other children, that can be easily understood.
Influence is OK; UNDUE Influence is NOT
- But merely asking for money or for a larger inheritance doesn’t mean a probate judge will over-ride an estate plan. (No harm in asking, right?)
- It takes more – a lot more – than that to set aside a will based upon undue influence.
- Courts look to a typical laundry list of factors when deciding if undue influence may have occurred.
- Who hired the lawyer that drafted the will?
- Who paid for that lawyer?
- Was the person who supposedly committed the undue influence present at the signing of the will or trust and did he or she keep the original?
- Facts like these can create a legal presumption that a will was indeed obtained or procured by undue influence.
- If you are a substantial beneficiary under the will or trust and you helped or caused that will or trust to be signed, don’t be surprised if aspersions are cast your way.
Probate Litigators Attorneys Fees — the X Factor
- When engaging in probate litigation, the litigant should be concerned about the “X” factor: attorneys fees.
- While most US states and courts follow the American Rule, which means that each party pays their own attorneys, probate law often has “fee shifting” statutes which mean the loser may have to pay.
- This can wipe out your inheritance if you get one, or give you a legal judgment to deal with if you lose.
- You may end up owing more than you hoped to inherit.