Protect yourself from undue influence when writing your will

Writing your will is a complex process, and not just for the wealthy. You want to be sure that every detail is handled correctly and fully complies with the law. If it does not, your will can possibly be challenged by someone or even invalidated by the court.

One element to be on alert for is undue influence. It has been explained by one expert as “the use of improper constraint, urging or persuasion” to get someone to make certain provisions in their will (or estate plan). The idea is that those provisions would not have been included or worded a particular way had the person not been heavily pressured to do so. Older adults may be especially vulnerable to this kind of pressure.

How can undue influence affect the content of a will?

A will is valid if the person creating it did so wholly independently. It must accurately reflect their own personal wishes, not someone else’s. No coercion should be exerted by anyone to achieve a result in their favor.

So, if someone’s spouse, relative or friend, for example, wants that person’s valuable art collection when they die, they cannot figuratively “lean on” the person to force them to put that in their will.

What would a court have to find to invalidate a will because of undue influence?

To invalidate a will for undue influence, a court would have to find:

1. The existence of a “confidential relationship” in which one party was dominant over a weaker party;

2. The dominant party received a benefit from the weaker party; and

3. The weaker party did not receive independent advice before engaging in the transaction that benefitted the dominant party.

Simply offering guidance to someone in composing their will is not considered undue influence.

Dealing with concerns about undue influence

Perhaps you or someone in your family is being subjected to what you believe is undue influence when writing a will. You can consult someone who knows these matters for suggestions on what to do.