When a loved one passes away, how much you will inherit is probably the last thing on your mind. But after the funeral is over and the mourners have left, when the will is submitted for probate, some people receive an unpleasant surprise. Someone they don't know well, perhaps an attorney, caretaker, or friend of the deceased has been left a large bequest in the will, with close relatives receiving much less than they might expect.
In these circumstances, the slighted relatives might reasonably reach the conclusion that the attorney, caretaker or friend exerted some sort of improper influence or control over the deceased to get them to change the will in the third party's favor. But how does one prove this?
"Undue influence" is a legal term. If it can be proved that someone exerted undue influence, a will may be invalidated and a previous will reinstated, or assets may pass under the law of intestate succession. But a court must make specific findings in order to determine that a will was created under a third party's undue influence.
In order for an Ohio court to reach this conclusion, it must find four things to be true:
If an attorney who prepared the will is named as a beneficiary, or a non-relative caretaker benefits from the will, a rebuttable presumption of undue influence is created. This means that instead of the heirs-at-law who are alleging undue influence having to prove their case, the burden shifts to the attorney or caretaker to show that there was not undue influence.
If there is a family member who was acting in a fiduciary capacity (such as power of attorney) with respect to the deceased before their death, and that person benefited from a gift, a rebuttable presumption of undue influence may also be created.
In the absence of a rebuttable presumption, it can be very difficult to prove undue influence, with often the most challenging element to prove the exertion of the influence itself. Often, circumstances that make an individual susceptible to influence, such as social isolation, also mean there are few witnesses to the actual exertion of influence.
If you suspect your loved one was unduly influenced to change their will, the charge may be difficult to prove. That doesn't mean that you shouldn't try, but it does mean that having an experienced probate litigation attorney on your side will help your chances. An experienced probate attorney will be able to evaluate the strengths and weaknesses of your case, compassionately help you separate provable fact from understandable emotion, and, if you have a viable case, will marshal evidence and advocate on your behalf.
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