Undue Influence: What Every Estate Planner Should Know

Understanding the many reasons as to why people initiate a will or a trust following a loved one's death, among that undue influence is one of the most common.

Due in part to the rapid growth of our country’s aging population, many vulnerable adults are falling prey to the undue influence of others. Undue influence is (intentional or unintentional) conduct that supplants the will and the true intentions of the vulnerable adult with the will of the 'trusted' perpetrator. Undue influence is usually not a single event; rather, it is a process which is generally conducted in secret and therefore must be proved by circumstantial evidence. If lawyers or other professionals engaged in the estate planning process fail to understand and recognize undue influence and to adhere to practices that could be utilized during the planning process for a vulnerable adult, these professionals may well find themselves on the wrong side of a contest proceeding or otherwise unable to defend the independence and validity of a client’s estate plan. In such instances, the failure to take simple precautions and adequately document the process utilized to assess capacity and the absence of undue influence may well undercut the ability to defend the plan.
This topic is intended to educate you on the basics of undue influence and address issues that can arise during the litigation of such claims. The information will assist practitioners in identifying vulnerabilities and many of the indicia or 'red flags' of undue influence. It will also provide insight into actions which estate planners might engage that could result in protection of the plan. It will also help in clarifying the often confused distinction between competency and undue influence. This content will also provide a greater understanding of many of the ins and outs of undue influence contests.

Faculty

Sandra D. Glazier, Esq.

Lipson Neilson Cole Seltzer & Garin PC

Thomas M. Dixon, Esq.

Clark Hill PLC