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What is Undue Influence?

Posted in Probate Litigation. Tuesday, Feb 02nd, 2016

When a will is executed, especially if it is executed or changed as the testator, the person making the will to provide for his or her estate plans, gets older, his or her family members might be concerned about the possibility that the testator does not understand what he or she is including in the will. That concern becomes more pronounced if the will drastically changes, includes a new beneficiary, or seems to be created or adjusted at the behest of someone such as a caretaker or one of the testator’s children. In these situations, loved ones may be concerned that the will was executed or changed as a result of the undue influence of someone other than the testator.

Creating a Will

Ohio law places some limits on who is able to make a valid will. In order to execute a valid will, a testator must be 18 years of age or older, RC2107.02.  Additionally, the testator must be “of sound mind and memory.” A testator who is mentally incapacitated or is incapable of understanding the will, his or her estate, or his or her intentions cannot execute a valid will. The law also requires that a testator not be under restraint. Restraint does not necessarily mean physical force, although that would make the will invalid, but can include other forms of coercion or pressure to the point that the will does not represent the testator’s intentions.

Undue Influence in Probate Law

One form of restraint under which a will may be found invalid is undue influence. Undue influence occurs when someone other than the testator exerts pressure or coercion or takes advantage of a position of power in order to induce the testator to substitute that person’s wishes for his or her own with regard to the provisions of a will. In order to show that undue influence occurred, there are several factors that can be used. The testator’s susceptibility or mental capacity may be important to show the possibility that he or she could have been unduly influenced. In addition, the person’s opportunity to influence the testator may be considered. For example, a sole caretaker who spends time alone with the testator would have more opportunity to exert influence than someone who rarely sees the testator.

It can be helpful to be able to show some evidence of the influence or change to the testator’s plans. For example, if a testator had communicated that he or she intended to leave belongings to his or her grandchildren, but the will instead leaves those belongings to a caretaker, this can support the argument that the testator’s will did not accurately reflect his or her intentions.

Work with a Columbus Probate Attorney

Dealing with the death of a loved one can be difficult even in the best of circumstances. These difficulties may feel overwhelming if you have reason to believe that his or her will does not represent your loved one’s intentions or was executed involuntarily. If you have questions about the validity of a will or about your rights as a beneficiary, it is important to work with an experienced attorney to understand your legal options. Contact a Columbus probate litigation attorney at the Law Office of Mike Gertner for a consultation today.