Identifying (and Proving) Undue Influence

Probate litigation is on the rise, in Ohio and across the United States. One possible reason for the uptick in cases is tied to the increase in divorce over the last several decades. More people divorcing means more people remarrying, which means children from a first marriage might be pitted against a stepparent or step-siblings when it comes time to inherit. Of course, there are other reasons there might be an fight over a will or trust. A close relative who receives a smaller inheritance because of a bequest to a friend or caretaker might be suspicious that that person exerted "undue influence" over the deceased. Much, if not most, probate litigation regarding the validity of a will or trust is based on claims of undue influence. Let's take a look at what is involved in identifying (and proving) undue influence.

Proving Undue Influence in Ohio

The same scenario could be looked at in two completely different ways. Let's say that Mary is an older woman with limited mobility whose only child, Jeff, lives across the country. He rarely visits Mary, though he calls once a week or so. Mary has a neighbor, Tim, who drops by regularly. He helps her with things like changing light bulbs and fixing leaky faucets, and often drives her to doctor appointments. Sometimes he stops in for a cup of coffee and a chat. When Mary dies, son Jeff discovers she left her house to neighbor Tim.

If Jeff challenges the bequest on the grounds of undue influence, he might allege the following: Mary was isolated by her limited mobility and was lonely. Tim took advantage of her and used her need for transportation and help around the house to pressure her into leaving him the house, which she did. Tim might counter that he was genuinely fond of Mary, that he was happy to help her and never asked for anything in return. Furthermore, he could see was lonely and tried to do things for her that her son might have—if he were ever around. Both stories are plausible, and both Jeff and Tim might wholeheartedly believe that their own story is the truth.

Any Ohio probate attorney can tell you the four elements needed to establish undue influence in the making of a will or trust:

• A person who was susceptible to influence;
• The opportunity of another person to exert influence;
• An exercise or attempt to exercise improper influence; and
• An outcome that shows the effect of the improper influence.

Unfortunately, any Ohio probate attorney can also tell you it is challenging to prove all four of these elements. Those cases that can be proved are often proved by circumstantial evidence. While many people think that calling evidence "circumstantial" is the same thing as calling it "weak," that is not always so. Circumstantial evidence simply involves a consideration of all of the circumstances surrounding an event and drawing an inference from them.

You have drawn inferences from circumstantial evidence if you've ever walked into your kitchen and found the trash can on its side with garbage strewn all about, with your guilty-looking dog nearby. There were no witnesses, but you were pretty sure, from the circumstances, what happened. A skilled attorney may be able to prove an undue influence case by painting a clear picture of the circumstances to the probate court.

Using Circumstantial Evidence to Prove Undue Influence

There is no comprehensive list of factors written into Ohio law that can be used to prove undue influence in a challenge to the validity of a will and trust. However, various legal scholars have identified circumstances which, taken together, could make a compelling case:

• The person who made the will or trust was physically or mentally frail, which would make him or her more susceptible to influence.
• The person who made the will or trust was incapable of withstanding pressure, possibly due to their physical or mental condition.
• The person being accused of influence isolated the person who made the will or trust from other friends or family.
• An "unnatural disposition," such as disinheriting three out of your four children. While you have a legal right to do this, very few people actually would.
• The disposition makes no sense when considering the relationships involved. For instance, if you had a generally good relationship with your adult children, it seems unlikely you would disinherit them in favor of a personal care aide.
• The person being accused of exerting influence was present at the making of the challenged will or trust and may have driven the person making the will or trust to the lawyer.
• The person being accused of exerting influence provided the attorney with the names of beneficiaries.
• The person being accused of exerting influence either has a copy of the estate plan document being challenged or knows a lot about its contents.
• An estate plan of long standing is dramatically changed without an apparent reason, and is much different from previous wills/trusts.
• A new attorney, not the will/trust maker's usual attorney, drew up the new estate plan.
• The estate plan was changed shortly before the death of the person making it.
• The person being accused of exerting influence did not keep family members of the deceased updated about their loved one's condition, such as that he or she was near death.
• The person being accused of exerting influence "helped himself" or herself to the deceased's assets before the deceased died.
• The person who made the estate plan is dependent upon the person who is accused of exerting influence (such as for medical care or other personal assistance).
• The person accused of exerting influence describes the person who made the estate plan as "strong-willed," suggesting that he or she would not have been susceptible to influence.

Taking the scenario above, let's imagine a little added information. If Mary had a new will made a month before her death, made by Tim's attorney, that might be cause for raised eyebrows. If her previous wills had all left the house and her other assets to Jeff, that would be additional cause for concern. If Tim intercepted Jeff's calls, saying Mary wasn't available to speak, that might further suggest undue influence.

An experienced probate attorney would never guarantee success in an undue influence claim, but he or she could help you evaluate the circumstances surrounding the making of a new estate plan and help you put together the strongest possible case using circumstantial evidence.

You may also be interested in:

• How to Choose a Probate Attorney
• Estate Planning for Blended Families
• Can You Disinherit a Child in Ohio?