question.jpgIn Trusts and Estates

Can a will be challenged because of undue influence?

A will can be challenged on the basis that a person was being unduly influenced at the time they created the will. If one were successful in this will contest, the will would be deemed entirely invalid. The key to the question of undue influence is that someone may have prepared their will and had the necessary capacity, but somebody else was exerting persuasive mental control over them such that their influence affected how the will was drafted. If this influence caused the will’s drafter to execute a will that he or she would not have executed, but for the influence, then the will is void. When trying to determine if there was such undue influence in any given situation, the court will look at a variety of factors, including: (i) what motives one would have had for exerting the alleged undue influence; (ii) what access and opportunity there was to exert the alleged undue influence; (iii) the relationship between the parties; (iv) how susceptible the will’s drafter would have been to such influence and his or her ability to resist such influence; (v) whether there are any strange provisions in the will; and (vi) the connection between the alleged undue influence and the will and its provisions.

It should be noted that the key distinction between undue influence and duress is that undue influence is tied to a mental influence, whereas duress is generally about physical violence and threats.