|
Sometimes Wills can be set aside if will drafter was
wrongfully influenced
|
Dear Mr. Duman:
I am very concerned about my grandmother. She is very fond of
her "live-in" care-giver.
Recently, I learned that the care-giver took my grandmother to see
her lawyer, where she made a new Will leaving her home, and most of her
estate, to the care-giver.
My grandmother is still alert and aware, but she can be talked into
doing anything. I am afraid that she is being taken advantage of
by her care-giver.
Are there any grounds to challenge the new Will?
P.K., Dublin
California law, a Will is invalid, to the extent "undue influence" is shown to have been used. In order to successfully assert an "undue influence" challenge to the validity of all or part of a Will, the party challenging the Will on these grounds must show:
1. That the testator was particularly susceptible to "undue influence" or "domination" by another (such as the elderly, physically infirm, handicapped, mentally incompetents etc.); and,
2. That the person accused of subjecting the testator to "undue influence" had an opportunity to do so (i.e. time spent alone with testator); and,
3. The person accused of "undue influence" must be shown to have a motive or disposition to influence the testator for personal benefit (i.e. some advantage or benefit was achieved); and,
4. The provisions of the "influenced" Will must appear to be an "unnatural"
or unexpected result, arising out of the accused partyís coercive conduct
(i.e where an unrelated party with little or no long-standing relationship
to the testator is named as a primary beneficiary). The existence
of a contrary prior Will can satisfy this requirement.
Other factors, when shown to exist, can create a "presumption" that
undue influence has occurred. For example, when any beneficiary under
the Will, is also a witness to the signing of Will, the witness/beneficiary
may be deemed an "interested witness", thereby potentially creating an
inference of "undue influence".
Additionally, the existence of a "confidential relationship"
between the testator and the accused party may also create a presumption
of undue influence, upon a showing of opportunity, motive/disposition,
and an "unnatural testamentary result". Such "confidential relationships"
include "attorney and client", "doctor and patient", in addition to any
other fiduciary-type relationship.
"Undue Influence" should not be confused with "testamentary fraud",
which is an entirely separate basis upon which a Will may be challenged.
"Testamentary fraud", requires a showing that the accused party induced
the testator to make a Will or testamentary gift, as a direct result of
lies or falsehoods told to the testator (i.e. regarding other potential
beneficiaries). A showing of "testamentary fraud" also requires proof
that the testator actually relied on such false statements in making his/her
Will.
Both "undue influence" and "testamentary fraud", as they pertain to the law of Wills involve various complex legal principles. Therefore, questions regarding this matter should be promptly brought to the attention of your lawyer, for specific advice and counsel.
4\docs\column\undueinf.wil
fd243
