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.
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:
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.
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:
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.
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