~ By Tamra K. Waltemath, P.C. ~
In many cases where a Will is contested, the claim of “undue influence” is presented as a cause for asking the Court to invalidate a Last Will and Testament (“Will”). Undue Influence has been proved where at the time of preparation or execution of the Will, a beneficiary of such Will was actively involved in the preparation or execution of the Will. The presumption is the Will is a product of undue influence. In other words, if someone goes to an attorney to do a Will and they bring a child or any other Will beneficiary with them who tells them what to say in the Will and/or who to leave their money to, the Will may be invalidated because it is a product of undue influence.
When someone comes to my office to have a Will prepared and they bring others with them, this may cause a problem. It is important that a person making a Will be capable of telling the attorney what property he or she owns, who is in their family and who they want to leave their property to in the Will. I understand that many clients want children to accompany them to my office to discuss preparing a Will because they want another set off ears to help them understand and remember the information I am discussing with them. But, it is important to me that the client is able to give me directions in preparing his or her Will, not their children, so that the Will is not contested.
After clients sign their Will, I ask them if they understand the documents they are signing and if anyone is forcing them to sign the document(s) and most clients laugh but I ask because I do not want your Will contested for undue influence.
Some factors a court considers when determining whether undue influence may be inferred are:
- Did others participate In the estate planning (the initial appointment with the attorney);
- Was the Will maker susceptible to undue influence;
- Was there a confidential relationship between the Will maker and the beneficiary;
- Was the Will preparation directed by one of the beneficiaries;
- Did the Will maker or the beneficiary keep the execution of the Will secret from other members of the family;
- Did the Will maker make unnatural changes to his or her estate plan.
Please keep in mind, you may leave your property to whoever you wish in a Will, but it must be your decision and you must be capable of making that decision.
This article was written by Tamra K Waltemath of Tamra K. Waltemath, P.C. This information is for general informational purposes only and does not constitute legal advice. For specific questions, you should consult a qualified attorney.
Tamra K. Waltemath is an elder law attorney focusing on wills, trusts, estate and trust administration, probate and non-probate transfers, guardianships and conservatorships. She can be contacted at: Tamra K. Waltemath, P.C., 3843 West 73rd Avenue, Westminster, CO 80030; 303-657-0360; or visit her website at: www.WaltemathLawOffice.com.