Making the case of Undue Influence: what needs to be proven?
Undue influence will not be found simply because someone persuaded the will-maker or testator to make a change to their will that benefits the person who persuaded the testator. Good or bad, when a person asserts that a will is invalid, because the will maker was under undue influence, they must prove several things. The influence must be sufficient that the testator’s judgment or wishes were overpowered. Undue influence has been described as:
“an influence causing the execution of a will which pretends to express the will-maker’s mind, but in reality does not, and expresses something else which he or she did not really mean.”
Therefore, mere persuasion or advice from an interested person will not suffice in proving undue influence. The heavy burden of proving that force and coercion destroyed the will-maker’s free will lies with the person who is disputing or challenging the will.
However, the burden of proof shifts if it can be shown that there was a special relationship between the will-maker and another person who substantially benefits from a will. This is called the presumption of undue influence. This type of special relationship arises where: the person was in a position where there was potential for dependence or domination of the will maker.
This presumption can arise in a large variety of situations. A common example is where the will maker is parent who is dependent on one of their children for their day-to-day care. Once this special relationship is established, it is the person who benefited from the will that must prove the gift was not made out of undue influence. If he or she cannot do this, the court can cancel or reduce the gift, or even set the entire will aside.
If you or someone you care about has been left out of an estate unfairly, the lawyers at League and Williams are here to help, please call 250-888-0002 or email for a free consultation.