When creating their will, an individual has the option to distribute assets to whomever they choose.
As we know, testators do not always elect to assign their assets in conventional ways. For example, one may choose to leave their wealth with an animal welfare society or other charity or to a close friend rather than to their children.
In some situations, a parent chooses to leave a greater portion of their assets to one offspring while reducing the portions going to others.
Even though wills must be signed by the testator and two witnesses while in each other’s presence, they can still be contested. Often challenges arise because certain parties believe that the distribution of assets unfairly favored another recipient. In many instances, the claimant alleges that the executor somehow asserted undue influence on the testator before and during the drafting of their will.
While the law will void any will that resulted from proven undue influence, not all influence can be deemed “undue.”
Determining Undue Influence
Proving that an executor or other person had asserted undue influence requires claimants to prove that irresistible physical or mental pressure had been used to subvert the testator’s true wishes.
In such cases, the court will attempt to put itself in the position of the testator at the time to try to determine if all aspects of the will represented their true wishes or rather those of the executor or another beneficiary.
Courts will first try to learn whether the testator had, in fact, been the victim of undue influence when the will was signed. They will review the individual’s age and physical or mental condition at the time. Testimony of doctors and visitors plus medical records can reveal whether the potential for influence existed.
Next, the court will examine any prior wills and any history of testamentary intent.
Proving the Will was the result of Undue Influence
In each case, the burden of proof for challenging the validity of a will rests with the plaintiff or contestant, not the executor. Unless undue influence can be proven, the will remains valid and the assets will be divided accordingly.
The process usually follows the following sequence:
- Filing of Petition or Affidavit : The contestant files a petition in court alleging that the defendant has used undue influence for personal gains.
- Identifying Signs of Undue Influence: The court will try to determine if certain conditions existed that may have made the testator vulnerable to undue influence. The vulnerability could stem from physical dependency on the executor at the time of the will or an unusually large gift to the person who helped draft the estate plan.
- Interview the Decedent’s Lawyer: The lawyer who drafted the will may be an important witness. This individual may be able to support the case that the deceased had operated independently. If, however, the principal beneficiary took the initiative to establish the estate plan and will, undue influence may will be considered a possibility.
- Interview Witnesses to the Signing of the Will: The two witnesses to the will signing may be able to attest to the capability and independence of the decedent.
- Interview the Attending Physician: Ask for a summary of their patient’s condition at or near the time of the will and estate plan development.
Defending Against Undue Influence Charges
Executors and others facing a charge of undue influence should immediately consult an experienced probate or elder lawyer. With this assistance, you will draft a formal response to the charges.
The lawyer may recommend asking that the charges be dropped.
A copy of the response will be circulated to the contestor and other interested parties.
Subsequently, our lawyer will conduct depositions under oath with the appropriate parties. You will be allowed to request the names of individuals who claim to have important information about the supposed influence to determine their credibility.
Final Judgement Possibilities
Potential outcomes in these cases are:
- Summary Judgement: The discovery phase has yielded insufficient evidence of undue influence.
- Settling the Dispute or Mediation: Because challenging the charge in court can cost more than the inheritance, you may decide to compromise or settle the case. A third-party mediator may listen to arguments and offer a settlement that is acceptable to all.
- Going to Trial: Present your case, defend against the accusations, and wait for the verdict from a probate court judge.
Contact Nicholas A. Giuditta III, New Jersey Estate Lawyer
To ensure there will be no challenges to your estate plan or to defend against subsequent challenges, working with a proven elder law firm is essential. Remove all doubt about your intentions with a clear and unambiguous will.
To help with your will, contact Giuditta Law in Westfield NJ, a licensed New Jersey Estate Attorney, to discuss your plan or to defend against any legal challenges.