Undue influence

What it means

Undue influence is more than persuasion or a difficult relationship. It is influence that substitutes one person's will for another's.

Courts look at the pattern rather than a single act: isolation from other family, dependence on the person who benefited, a sudden change late in life, secrecy around the signing, and who arranged the lawyer.

Where somebody in a position of trust benefits from a change they helped arrange, many states shift the burden onto them to show the transaction was fair.

Why it matters

It is the ground on which late changes to wills, deeds and beneficiary designations are most often set aside, and the ground on which financial exploitation of an older person is most often addressed.

It is also the reason to keep the person who benefits out of the room, and out of the arrangements, when a document is being signed.

When you are likely to meet it

• When a will changes suddenly in favor of a new caregiver, friend or one child.
• When a parent has become isolated from the rest of the family.
• When a transfer of a house or an account cannot be explained.

How this varies by state

What raises a presumption of undue influence, and who then has to disprove it, are set by state law.

Related terms

• Adult Protective ServicesThe state agency that investigates suspected abuse, neglect or financial exploitation of vulnerable adults.
• CapacityWhether somebody is able to understand a decision and its consequences well enough to make it. It is decided decision by decision, not once and for all.
• Fiduciary dutyThe obligation to act for somebody else's benefit rather than your own — and to be able to show you did.
• Financial exploitationTaking or misusing an older or vulnerable person's money or property. It is usually done by somebody they know.
• GuardianshipA court appointing somebody to make decisions for an adult who cannot make them, usually about care, housing and medical treatment.
• Look-back periodThe stretch of time before a Medicaid application during which gifts and transfers are examined, and can delay eligibility.
• No-contest clauseA clause disinheriting anybody who challenges the will. Whether it works depends on the state.
• Testamentary capacityThe mental capacity required to make a valid will. The standard is lower than the phrase “sound mind” suggests.
• TestatorThe person who made the will.
• Trusted contact personSomebody named on a financial account whom the firm may contact if it is worried — about the account holder's health, or about a transaction.
• Will contestA formal challenge to whether a will is valid, brought in the probate court by somebody who would be affected if it were not.
• Witness requirementsWho must watch a document being signed, how many, and whether they may also benefit from it. Getting this wrong can void the whole document.

Sahvelo guidance that uses this

• Financial exploitation
• The will