Trust Contests – Undue Influence

In most trust litigation cases, a testamentary document can be challenged, otherwise known as contesting. Contesting a will or trust is the act of challenging the validity of such document, under the idea that it does not, or no longer reflects the true wishes or intentions of the testator. A trust or will can be contested on a variety of grounds, but ultimately proof of undue influence or fraud is imperative.

Undue influence is the act of exerting excessive persuasion, influence, or power over an individual, thus causing them to act against their own free will or judgement, resulting in an unfair outcome. Often this is a direct result of a power imbalance. Commonly in this area of law we find that this imbalance of power is usually enabled due to elderly abuse and exploitation.

Elderly abuse and exploitation is especially prevalent in these types of cases, as the vulnerability of the elderly leave them prey to scams and fraud by outside parties, but more commonly, their own family. We find that the most customary situations in which undue influence takes place is when an elderly party is left in the care of the wrong hands. Most people who intended to defraud an estate, often capitalize on the isolation, diminished mental capacity, and frailty of the elderly, all of which collectively allow for undue influence to successfully take place. We see situations where a son or daughter take on the responsibility as a caretaker for a parent, however, they do this with the full intent to misuse their power. This usually leads to isolation of the parent from other people, control of their communication with others, and exploitation of the parents dependence on them for livelihood to manipulate an estate for their benefit. This in turn can result in last minute amendments and sometimes even an entirely new will or trust being forged, causing discrepancies in distribution of assets, stolen money from the estate, and wrongful removal of beneficiaries.

In the event that someone is successful in this, a will or trust contest can be proposed to potentially rectify the situation. To contest a will or trust, the person who wants to bring about a contest will have to provide cogent evidence that at least one of the following things are true:

• There was fraud or undue influence involved in the creation of the trust or will
• The testator did not have testamentary capacity at the time they created the trust or will
• The person who assisted in setting up the will or trust may benefit from said will or trust
• There are concerns or issues in how the trust was signed or witnessed

If you believe undue influence has occurred, and an estate is in jeopardy of being cheated please request a consultation with The Inheritance Recovery Attorneys. It is crucial to consult and hire an experienced trust litigator as soon as possible as there are unique and time sensitive circumstances (like no contest clauses and 120 day deadlines), which may risk your ability to recover your inheritance. We offer free consultations in which your case will be thoroughly evaluated by an attorney to determine if a trust or will contest can be proposed, or if we can achieve a result in line with your goals. Please reach out to see what you can do to protect your inheritance.