Naperville Estate Planning Attorney Talks About the Problem of Undue Influence

undue influence, Naperville estate planning attorneyThe period immediately following the death of a close loved one is nearly always challenging, even if the death was the result of a long illness or health problems dating back many years. In the midst of your grief, it can be very troubling to discover that the will your loved one created was recently updated in a manner that seems to be suspicious. This is especially true if the recent changes seem to benefit one beneficiary in particular.

If you have any reason to suspect that the heir in question—or anybody else—pushed or tricked your loved one into changing the will, you could have valid grounds to challenge the will. An experienced estate litigation attorney can help you take action.

The Rights of Testators

Under Illinois law, a person is entitled to choose how his or her property will be handled upon his or her death. Such decisions, however, must be voluntarily, or the person’s rights have been compromised. An individual who was coerced or deceived into distributing assets in a certain way did not make voluntary decisions. “Manipulation” might be a better word for the situation.

Illinois courts have created a definition for what is considered to be “undue influence” in the area of estate planning and administration. Influence from another individual is “undue” when the creator the will—called the “testator”—is prevented from exercising his or her intentions in the distribution of his or her property in such a manner that the “testator’s will is rendered more the will of another.”

Who Benefits and How?

In most cases, undue influence is associated with an heir or heirs trying to take advantage of an aging or infirmed loved one. To demonstrate how undue influence might affect a situation, consider a scenario in which an elderly widow has four children and moderately large estate. For most of their adult lives, three of the children lived near their mother, visited often, and generally cared for her as she aged. One of the children, however, was a so-called “free spirit” who lived in various states and often went for years without communicating with any family members, including her mother.

At age 70, the woman drafted a will in which each of her children would receive an equal portion of the estate. About a decade later, as the woman’s health is in serious decline, she and her children decide that a nursing home is the best option. The three nearby children visit regularly and help her with daily activities, but the fourth is still out of contact for months. One day, she suddenly appears and spends every waking hour of every day at the mother’s nursing facility. The other children chalk up the new behavior to many years’ worth of guilt, as well as their sister wanting to enjoy some time with her mother before the mother’s death.

A few weeks later, the mother dies. When the will is presented for probate, the three siblings discover that the woman had created a brand new will just several days before her death. The new will gives the free-spirited child 80 percent of the estate and just 20 percent to the other three. A situation such as this one would raise all sorts of red flags for undue influence.

Proving Undue Influence

To mount a successful challenge to a will based on undue influence, you must provide proof that the alleged influencer had substantial access to the testator. You must also offer evidence that the challenged will is not in line with what the testator had expressed previously. Finally, you will need to show that there is not a reasonable explanation for why the testator would have changed his or mind voluntarily.

A Naperville Probate Litigation Lawyer Can Help

It can be very difficult to prove that a loved one’s will was created under undue influence, but the team at The Gierach Law Firm has the experience and legal knowledge to assist you and your family. Contact one of our DuPage County contested wills attorneys to discuss your case today. Call 630-756-1160 for an appointment.

 

Sources:

Forbes

Illinois Pattern Jury Instructions