September 03, 2017
Avoid Challenges to Your Will Because of Undue Influence
Some of the most heated and fiercely fought actions are in estate matters. Family members that believe they would never fight with one another over grandmother’s china can find themselves in a heated battle. Most of these arguments are settled within the family without the need for court action. However, some arguments are settled by a judge, including allegations of undue influence.
What is Undue Influence?
Asking for your children’s wishes when dividing your personal property or one child requesting you leave him your fishing equipment because the two of you spent a lot of time fishing together is not considered undue influence. To rise to the level of undue influence, the requests must be made at a time when the person is in a compromised state, such as being physically disabled or mentally ill. In addition, the person making the request must have had the opportunity to make these requests in confidence or in private, and the person had a reason for using undue influence. Lastly, there must be evidence of the suspicious transaction.
For instance, a father changes his will to leave everything to his girlfriend and cut his children out of the will because of statements made to him by his girlfriend as she assumed the role of sole caregiver when the father was terminally ill. In this example, the father was in a compromised state, the girlfriend had the opportunity, the result benefited her, and the will was changed.
When allegations of undue influence are made, a judge will look at all relevant facts to determine if the elements of undue influence were met. If you want to avoid allegations of undue influence in your estate, there are several steps you can take while preparing your estate plan.
How Can I Avoid Allegations of Undue Influence?
First, we urge you to go through the estate planning process independent of anyone who would benefit from your decisions. For example, if your third wife will inherit the bulk of your estate, you do not want her involved in the estate planning process at all if you have children from previous marriage. By leaving everyone who benefits from your estate out of the process entirely, you reduce the risk of undue influence allegations.
Along those same lines, working with our Michigan estate planning attorney can help establish your competency. By working with our lawyer to develop a comprehensive estate plan, we have the opportunity to discuss your decisions at great length. We understand the elements of undue influence, and we take steps to reduce the risk of these allegations while helping you ensure your final wishes will be honored after your death.
In addition to working with our attorneys, you may want to have a physical exam prior to signing your estate documents. A statement from your physician that you are in good physical and mental health can be placed in your file in case any problems arise in the future about your state of mind or health at the time you signed the estate planning documents.
Communicate Your Wishes to Your Entire Family
While you do not want to discuss your estate plans with family or heirs while you are working on executing the documents necessary to carry out those plans, after all documents are executed, and your plan is in place, then you may want to talk to your family. Many arguments arise between family members because each family member truly believes he or she knows what you wanted to happen to your estate.
By talking to your heirs, in a group and with your attorney present, you can explain your plans and answer any questions they have so they are not “assuming” they know what you were thinking after you are gone and cannot answer questions. Working with an experienced Michigan estate planning lawyer and talking to your family after the plan is completed can be the best steps you take to reduce the risk of undue influence allegations or other estate disputes.
The Elder Care Firm of Christopher J. Berry, CELA
Call 888-390-4360 or use the contact form on our website to schedule a consultation with an estate planning attorney or to request additional information.