By Carla Grabarek, Litigation Partner
Typically, when a person reaches out to an attorney because they believe “undue influence” has negatively affected another’s estate plan, it is because they learn after a loved one’s passing that their inheritance did not meet their expectations or live up to prior promises. What is the difference between “undue influence” and… well, just influence?
Undue Influence Defined
These days, the word “influencer” brings to mind a TikToker dancing the latest trending moves or pushing an internet-exclusive teeth whitening system. In the realm of estates and trusts, “influencer” has a darker meaning.
Undue influence might be better described as improper influence. In the seminal Oregon court case that provides the definition and factors the court considers in determining if influence was “undue,” the court described undue influence as when “the will of another person … is substituted for that of the testator.” In re Reddaway’s Estate, 214 OR at 418 (quoting In re Porter’s Estate, 192 Or 483, 492 (1951).
The court examines the “influencer’s conduct” to determine if their powers of persuasion and wrongful conduct brought about an unfair advantage. Even if it appears there was consent on the part of the influenced party, if the court finds the influencer’s conduct was improper, they may still determine it was undue influence. Evaluating what often amounts to solely circumstantial evidence, the court considers several factors to resolve whether undue influence was at play. These factors include:
- Whether the influencer participated in the preparation of the will.
- Whether the decedent received independent and disinterested advice.
- Whether the estate plan was prepared in secrecy, particularly from the beneficiaries who are considered the “natural objects of one’s bounty,” or in haste.
- Whether the decedent’s “attitude” changed following close association with the influencer.
- Whether the estate plan was changed, especially if there were unexplained changes from previous wills or a plan to die intestate, or the change resulted in an unjust gift to the influencer instead of those who would “naturally” be expected to inherit.
- Whether the decedent was physically sick, emotionally or mentally confused, or dependent on the influencer, and therefore particularly “susceptible” to influence.
What To Do if You Suspect Undue Influence
If you have concerns about a loved one who you suspect was improperly influenced while preparing their estate plan, the time to act is now. Consult with Wool Landon, or an attorney in your jurisdiction who is experienced in estate and trust litigation, who can evaluate the circumstances and available evidence to determine the potential remedies available to make it right. Whether or not your loved one has passed, taking immediate action is the key to having the most options available to you. Statutes of limitations run fast, and influencers only benefit more as time passes.