Was There Undue Influence With the Will? : 5 Questions about undue influence and inheriting from the estate

Were you cut out of a will and you think it was caused by undue influence? Was your inheritance cut short by someone who interfered with your inheritance based on undue influence?

It seems that everyone knows about “undue influence.” A will, a trust, or even a gift, or the changing of a title to bank account, which is caused by undue influence may change things dramatically.

If you prove that a will or a trust was caused by undue influence, that will or that trust may be “void”: declared invalid, over-turned and forever changed. This is ammo for the beneficiary, heir or family member who was “cut out” of an inheritance, or who received much less under a will or a trust than they thought they would inherit.

But what is undue influence? How do you prove it?

There are five (5) important questions you NEED to ask if you believe that a will was caused by UNDUE INFLUENCE.

1. What are the specifics of undue influence? Undue influence is a form of fraud. Think of undue influence as over-persuasion, force, coercion: when what somebody says, or does, something that pressures someone to sign something….so much pressure that the will or trust that is signed is not the product of the person signing it, but the product of the person who is committing undue influence. Undue influence must be typically alleged with particularity or specificity. You need to know who committed undue influence. Who exerted pressure on someone to change a will? Who benefitted from the changed will? How was the undue influence done?
2. How do I know if undue influence was caused? You probably won’t right away. Consider this: you are an adult son living in California, a successful writer for a television show in Burbank. Your father dies in a townhouse on the water in Boca Raton, Florida. His will leaves everything to his “girlfriend” that he’s only known for a year. You find this strange: odd. Why would your dad leave everything to this girlfriend that you’ve never met, when you know your father loved your sister and wanted to leave his estate to you and your sister, and some money to his college and a few nieces and nephews. You learn that the will was signed three days before your father’s death at his “girlfriend’s” probate lawyer’s office in Delray Beach, Florida. You don’t know if the will was caused by undue influence because you were three thousand miles away getting an Emmy when your dad supposedly signed the will. You’ll probably only find out if undue influence happened if you conduct discovery.
3. How do I learn about undue influence? Sadly, you won’t know exactly how your father signed the will and whether there was undue influence unless you conduct undue influence discovery. You can call witnesses yourself, and try to speak with them, but my experience is that that may not be as helpful as filing formal, lawsuit discovery: send interrogatories (written questions required to be answered under oath to parties), request documents, issue subpoenas and conduct video taped depositions. Why? In court, there are deadlines that must be complied with; if they are ignored, the court can order or “punish” or “sanction” the party not complying. Formal discovery requires candor and truthfulness with harsh penalties if you are not upfront. Answers to interrogatories are signed under oath, depositions are recorded by a court reporter and when you video tape it, you can put the witness in front of the judge on your laptop or ipad. In essence, you need to reconstruct your father’s life around the time he supposedly signed the will leaving everything to the girlfriend. Who were the witnesses and the notary? Whose idea was the will? Did the girlfriend’s probate lawyer from Delray Beach play a part in this?
4. How do I raise undue influence? If you are objecting to your father’s will, you raise undue influence in the probate proceeding: the estate administration process in the court system for the county where your father passed away. If there is no probate open, you need to open one up. Otherwise, you need to consider suing the person who you believe committed undue influence in a civil action, for tortious interference with an inheritance. Remember: the law rewards those who take action and not those who sit on their rights.
5. How long do I have to sue someone for undue influence? Sadly, not long. While the claim of tortuous interference with an expectancy may have a four year statute of limitations, do NOT be fooled by this. You may only have 3 months or less. In some states, like Florida, when you get notice of the probate proceeding, you typically get a copy of the petition for administration, which is the document that “opens ” up the estate. This notice to you typically gives you only 3 months to object to the will. That’s your opportunity to take a stand and tell everyone that the girlfriend procured the will by undue influence and that it’s invalid. If you don’t act within three months, you can never raise undue influence again.

Two final points: one, if your father had a revocable trust or a living trust that is now irrevocable at his passing, you may have to object to that trust, as well as the will, or conduct discovery regarding the trust. Two, be mindful that there may be prior wills, or amendments to wills, called codicils, that you don’t know about. Who does your father leave his estate to in those prior wills?