[This post is Part Two in a four-part series discussing a variety of ways an estate plan can be challenged. You can find links to the other posts in the series here.]

Imagine your father is elderly, handicapped, and requires in-home care.

He develops a close relationship with his caretaker, who is much younger than he is. When your father passes away, you assume that all his assets will be left to you and your siblings. 

However, the caretaker comes forward with a Will signed by your dad a week before his death — and it leaves everything to her!

Seems fishy, right? This is a classic case of undue influence.

What is Undue Influence?

In Oklahoma, undue influence consists of taking an unfair advantage of another's weakness of mind or body or the use of authority to procure an unfair advantage over someone.

Put another way, undue influence occurs when someone exerts pressure on an individual, causing him or her to act contrary to his or her wishes and to the benefit of the influencer.

In the example above, the "influencer" is a person outside the family; however, undue influence can occur from inside the family as well.

Sometimes, a child may convince his or her parent to leave another child out of the Will or to leave that other child less of the estate. The child assisting his or her parents with their estate plan may not have any malicious motives: perhaps he or she simply thinks that their sibling would not manage the assets well.

Nevertheless, such a scenario could give rise to a claim of undue influence from the child left out of the Will.

How Can I Identify Undue Influence?

In assessing a claim of undue influence, courts consider a number of factors. But for our purposes, we have narrowed them down to four main indicators you can use to determine whether undue influence might exist: 

1. Look for unexpected gifts.

Courts often look at whether the testator disposed of his or her property in an unexpected way.

The question is sometimes phrased like this: Did the testator leave his estate to anyone who was not the natural object of his or her bounty?

For instance, if a woman was close with her three children, the fact that her Will leaves her entire estate to a caretaker looks suspicious. After all, one would expect the woman to leave most (if not all) of her estate to her children.

2. Examine the testator's mental/physical state.

Courts often consider the age and health of the testator in analyzing undue influence claims.

Frailty, deteriorating mental state, and other mental or physical factors could make a loved one susceptible to undue influence. Although undue influence is different than a claim of "lack of capacity," the same evidence is often relevant for both claims.

3. Consider whether the testator was isolated.

Third, determine whether the testator was isolated from other family or friends.

An influencer often tries to separate the testator from his or her loved ones so he or she will become dependent on the influencer. The testator may see the influencer as the only person that cares about him or her and thus believes it would be proper to leave the influencer their estate.

Elderly people, disabled individuals, and individuals with mental ailments may be especially susceptible to undue influence on account of their isolation or separation from other relations.

4. Scrutinize special relationships.

Lastly, look at whether there is a "special relationship" in the testator's life. A caretaker is simply one example.

Perhaps a neighbor spends a lot of time with your father and helps him with chores and other tasks. Or perhaps one child spends much more time with parents than another.

A "special relationship," by itself, does not indicate undue influence. There must be some action on the part of the influencer to show that he or she unduly influenced the testator.

Did she drive your father to his appointment with the estate planning attorney?

Was she present when your father signed his Will?

All these facts could indicate that the influencer utilized the "special relationship" to his or her unfair advantage.

How Can I Avoid a Claim of Undue Influence?

As mentioned above, perfectly reasonably intentions can still lead someone to challenge an estate plan on the grounds of undue influence. At various times, you may be the one bringing a claim or the one defending a claim. Therefore, we recommend a few best practices to avoid having a loved one's (or your) estate plan challenged because of undue influence"

1. Be Aware of Undue Influence

If you are helping a loved one prepare an estate plan, keep in mind the factors explained above.

Examine your actions from the perspective of a disgruntled heir and consider whether you have done anything that could be considered undue influence.

Remember: successfully defending a claim of undue influence is great, but the goal is to avoid the claim in the first place.

Any legal battle will result in thousands of dollars of attorney's fees and court costs.

2. Limit Involvement in Another’s Estate Planning

If a parent plans to leave everything to you, and you are your parent's primary caretaker, resist involving yourself in their estate planning process. 

You might simply wish to help your parent through the legal process, but look at it from the perspective of a plaintiff's attorney (who would argue there was undue influence):

You suggested that your parents review their estate plan.

You called the attorney's office to schedule an appointment for them.

You drove them to that appointment.

You sat in the appointment with them.

You were present for the signing of their estate planning documents.

An attorney representing someone challenging your parent’s estate plan will want to show the judge or jury that that you exerted complete control over your parent in amending their estate plan, and that such control amounted to undue influence.

If you involve yourself so heavily in the estate planning process, the case becomes much more difficult to defend.

3. Make Your Wishes Clear

For your own estate plan, be sure that your attorney has a clear record of your wishes.

Your estate plan may say exactly what you want — right now. But if you become incapacitated, frail, or mentally infirm, you could be the victim of undue influence. By making your attorney aware of your wishes (and the reason for them), you can better ensure that your estate is distributed the way you want.

Make a Rock-Solid Estate Plan

The issue of undue influence is even more complicated than explained above. Hopefully, this article gives you at least an idea of what undue influence is and how you can identify it.

Estate plans are meant to provide peace of mind in knowing that your assets will go to the people you want to have them. But if your documents are challenged, all your planning could be for naught. That's why it is vital that you consult with an experienced attorney to create a rock-solid estate plan.

If you believe a loved one has been the victim of undue influence or want to avoid the appearance of undue influence in your estate plan, contact the experienced Oklahoma City estate planning attorneys at Postic & Bates today for a free, no-obligation consultation appointment.

David M. Postic is an attorney at Postic & Bates, P.C. His practice focuses on estate planning, probate, real estate, trust administration, business planning, and adoption.

You can email David through our Contact Us page or by calling our office at (405) 691-5080.

[As with all our blog posts and other publications and resources, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]