Colin Wong
A court can set aside a will if it finds the will was made under undue influence. Here is what that means in practice.
You may have read that a will can be challenged on the grounds of undue influence. What that looks like in real life is not always clear, so here is a plain explanation.
Undue influence is pressure on the person making a will that pushes them into a decision they would not have made on their own. It usually comes up where the change benefits the person applying the pressure.
Influence by itself is allowed. A family member can ask to be included, and an adult child can offer an opinion about who should get what. It becomes undue when the pressure overcomes the will-maker's own wishes, so the will ends up reflecting somebody else's choices. Each state sets its own test, so check what your state requires.
Identifying undue influence
Some situations are clear. Consider this scenario:
An older man plans to leave most of what he owns to his two daughters, who live overseas. He asks his landlord to witness the will. The landlord sees the will and threatens to evict him unless he is named as a beneficiary too. The man is afraid of losing his home, so he adds a large gift to the landlord.
That is the kind of pressure a court would be looking for. The man did not choose the gift. He was pushed into it.
Most situations are far less clear than that. Working out whether influence crossed the line usually means looking at the wider picture, including who was close to the will-maker and how the will turned out.
Consider this scenario:
An older woman has two daughters and a son. Each daughter has one child, and the son has four. Late in her life, the son encourages her to rewrite her will so that what she owns is divided among her grandchildren instead of her children, as her earlier will had said. The change heavily benefits the son's own family. The daughters challenge the will, saying it was made under undue influence.
There is not always any bad intent involved either. Consider this scenario:
A father of two sons is seriously ill and starts planning his will with help from his eldest son. At first he wants to split what he owns between the two sons and leave some to a charity he cares about. His eldest son says that neither brother needs the money and suggests leaving it all to the charity. The father agrees and updates his will. Later, he mentions to his younger son that he will not be inheriting, and that it was his brother's idea. After the father dies, the younger son challenges the will on the grounds of undue influence.
What these scenarios show
The second and third scenarios could be completely genuine and could reflect exactly what the will-maker wanted. A court would have to weigh the evidence and decide. Neither of them is undue influence just because somebody says it is.
The useful point for anyone writing a will is this. A change that mostly benefits the person who suggested it can raise questions later, even where nobody did anything wrong. Being open about the reasoning takes a lot of the heat out of that.
Where a court does find undue influence, it may set aside the whole will or only the part that was affected. What happens next depends on state law and on whether there is an earlier valid will.
If you are making a big change to your will
Some people worry that a change will be questioned after they are gone. Here are things people do about it:
Write down the reasons for the change at the time it is made, and keep that with the will.
Tell the people affected themselves, so the change is not a surprise later on.
Keep the person who benefits from the change out of the process of making the will.
Talk to an attorney licensed in their state.
An attorney licensed in your state can talk through what makes sense in your circumstances. For anything complicated, such as a blended family or a change that will surprise someone close to you, that is the place to go.
If you are helping someone else write their will, the same idea applies in reverse. Read the questions out, help with the typing if that is useful, and let the choices stay theirs.
If you are making a big change to your will
Writing a will is a way of setting out what you want, in your own words. You can write yours online with EveryWill, and it costs you nothing. Charities cover the cost, and you can choose to leave a gift to one if it feels right.
The information provided in this article is for general informational purposes only and does not constitute legal advice. Laws vary by state. For advice specific to your situation, please consult a licensed attorney in your state.