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Tips To Identify Undue Influence

Posted by Aubrey Carew Sizer | Aug 15, 2022

While the matter of undue influence is a significant concern, succinctly defining the issue has proven elusive. Undue influence claims—as they relate to probate—often arise in conjunction with a petition for guardianship or conservatorship or when a Last Will and Testament (will), a trust, or another estate planning tool is disputed by an interested party. If you have a concern related to undue influence in the arena of estate planning, consider contacting an experienced Virginia estate planning attorney at the Law Office of Aubrey Carew Sizer PLLC by calling (571) 403-2619 to learn more.

Undue Influence in Estate Planning in Virginia

The Commonwealth of Virginia identifies a presumption of undue influence during estate planning when the following elements are met in relation to a testator's will:

  • The person who created the will was enfeebled mentally at the time his or her will was created
  • The person who created the will had a relationship of either confidence or dependence with the named beneficiary therein
  • The person who created the will had previously expressed contrary intentions regarding the distribution of his or her assets

Virginia Code on Undue Influence

The Code of Virginia (§ 64.2-724) establishes that a will, trust, or fiduciary created through undue influence, duress, or fraud is void. Further, in accordance with the Code of Virginia (§ 8.01-221.2), whenever a legal contract like a will is rescinded in response to undue influence or fraud, the related reasonable attorney fees and costs may be awarded to the person who brings the civil case in front of the court. In other words, if undue influence did play a role in your loved one's estate planning, you may have legal recourse.  

Identifying Undue Influence

The matter of undue influence in estate planning is more common than people may realize, but identifying the existence of the problem can be challenging. When we better understand how one party can exert undue influence over another, we may be better able to identify the presence of undue influence in our loved ones' unique situations.

Susceptibility

First, a person who was unduly influenced must have been susceptible to such influence. That susceptibility can come from either of the following factors:

  • Physical dependence, which is often experienced by the elderly and residents of nursing homes
  • Dependence caused by psychological or mental incapacity, which can also be experienced by the elderly and residents of nursing homes, among others

There are also situational factors that can leave an individual more susceptible to the undue influence of another person, including:

  • When mourning the loss of a loved one
  • When suffering from profound depression or anxiety
  • When suffering from a serious medical condition

Opportunity

In order for undue influence to be exerted, the element of opportunity must be present. Common examples of relationships in which this may be true include trustees and beneficiaries, guardians and wards, and residents of nursing homes and their caregivers. Often, an individual who is invested in exerting undue influence over someone else will engineer ways to increase the victim's degree of dependence upon him or her.

Evidence That Someone Is Exerting Undue Influence

That a person was susceptible to undue influence and that another party had the opportunity to sway him or her is not enough. There must be evidence that one party exerted undue influence over the victim. The following acts commonly signal an attempt to manipulate someone:

  • Efforts to isolate the victim from family, friends, and loved ones
  • Efforts to discourage the victim from seeking the trusted advice of others

If you experience a significant and unexpected change in your ability to communicate with, connect with, or visit a vulnerable family member, pay careful attention.

Evidence That Undue Influence Has Been Exerted

The attempt to exert undue influence must lead to some result that would not otherwise have occurred, such as any of the following:

  • A change to the victim's will
  • A change to a trust held by the victim
  • A change to any other estate planning tool belonging to the victim, including beneficiary changes on life insurance policies, retirement accounts, or any other assets

If you have reason to believe that someone may have exerted undue influence over your loved one, the experienced Virginia estate planning attorneys at the Law Office of Aubrey Carew Sizer PLLC can provide legal guidance.

The Allegation of Undue Influence

Often, the matter of undue influence is raised in an effort to void an amendment to a will, the will itself, or the allocation of another financial instrument that is part of the testator's overall estate plan. If you claim undue influence, you assert that the accused did so in order to unfairly benefit himself, herself, or someone else. Proving undue influence is often a complicated legal matter, but doing so can play an important role in ensuring that your loved one's authentic wishes are upheld. The burden of proof begins with the accuser, and this includes demonstrating that all the following are true:

  • The person who exerted undue influence obtained a financial benefit for doing so
  • The person who exerted undue influence developed a close relationship based on trust with the creator of the estate plan
  • The person who exerted undue influence was in a position to influence the will or estate planning document in question

Once these points are established, the burden of proof shifts to the accused, the person who may have exerted undue influence over your loved one.  

Consult with an Experienced Virginia Estate Planning Attorney Today

Undue influence, as it relates to estate planning, can have profoundly negative consequences, including failure to uphold the intent behind your loved one's last wishes. If you suspect undue influence of this nature, a seasoned estate planning attorney will understand the serious nature of your concerns and will be prepared to help. Ensuring that your loved one's last wishes are carried out in accordance with his or her intentions is important, so consider contacting the Law Office of Aubrey Carew Sizer PLLC by calling (571) 403-2619 for more information today.

About the Author

Aubrey Carew Sizer

Aubrey Carew Sizer is the Principal Attorney of The Law Office of Aubrey Carew Sizer PLLC, a Northern Virginia law firm providing representation for Wills, Trusts, and Estate Planning, Long-Term Care Planning, Guardianship and Conservatorship, Special Needs Planning for the Disabled, and Probate, Estate and Trust Administration.

Services

The Law Office of Aubrey Carew Sizer PLLC provides customized and affordable estate planning (including wills, living trusts, powers of attorney, and advance medical directives); elder law services (including long-term care planning, special needs planning for the disabled, and guardianships and conservatorships); probate, estate and trust administration (including advising executors and administrators of estates about post-mortem planning and the local probate process in Virginia), as well as general aging and disability advice in Northern Virginia, including but not limited to Arlington, Alexandria, Ashburn, Bristow, Burke, Centreville, Chantilly, Gainesville, Fairfax, Falls Church, Haymarket, Herndon, Leesburg, Manassas, Manassas Park, Reston, Springfield, Sterling, and throughout Loudoun, Prince William, and Fairfax counties.

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