Before invalidating a will because of claims of undue influence, probate courts must decide if actual coercion led to the decisions reflected in the will. Afterall, people help each other all the time. How is coercion different from help? What do courts look at?
Understanding Undue Influence
Legally, undue influence is considered “an act of persuasion that overcomes the free will and judgment of another person. It may include exhortations, insinuations, flattery, trickery or deception.” For example, if an heir convinces an elder to adjust a will for the benefit of that same individual, there may be grounds for another heir to pursue probate litigation, with the goal of invalidating the will. Ideally, families avoid these types of conflicts, and probate litigation, which in addition to being costly and time consuming, delays the distribution of assets to anyone.
Proactively developing and communicating a thorough estate plan long before doing so becomes an emergency or necessity is the best way to avoid probate litigation. In case there is any doubt about being of “sound mind,” when a will is written, establish competency by having a physician examine you around the same time as you are signing off on estate planning documents. It’s key to also inform your family members of your intentions, even if they disagree. Courageous conversation is particularly important if your decisions involve naming “surprise” beneficiaries or eliminating say, a child, while gifting a nephew.
Of course not all influence can be found to be “undue,” which makes these claims challenging. When a will is being probated, “an interested party with legal standing,” can only succeed with an undue influence claim by proving things like:
- The will distributes assets in a way that wouldn’t be reasonably anticipated. For instance, the will might leave out close family members without any explanation, while including virtual strangers.
- The deceased relied on or trusted the person who allegedly exerted undue influence.
- The deceased’s physical or mental condition made them susceptible to undue influence.
- The accused person benefits from changes in the will or some other suspicious transaction.
In cases of undue influence, the burden of proof falls to the person bringing the claim, and usually both witness testimony and documentary evidence are required by courts to show that coercion interfered with the free will of the testator:
Courts have explained that for influence over the decedent to rise to the level of undue influence, it must be demonstrated that such influence destroyed the free agency and will of the person over whom it was exerted upon. This type of coercion may be mental, moral, or physical, or a combination of all three. The influence must rise to a level to preempt the testator from following the dictates of his or her own mind and will, and instead, accepting the domination and influence of another….The mere fact that a party may give care and assistance to the testator does not in itself indicate evidence of undue influence so as to destroy the free will of a testator.
Understanding The Executor Role
When a will is created, the testator designates a fiduciary to carry out the arrangements. Most states refer to this designee as an executor, although some states use the term personal representative. Upon the death of the testator, the first official duty of the executor is to file the will in probate court, so it can be validated. State probate laws specify timelines and protocols for notifying the heirs and creditors of the estate, and claims and debts must be resolved before the executor can distribute any estate assets to beneficiaries.
Given their significant responsibilities, in most states, it’s common for executors to “have bonds to ensure their trustworthy behavior in their roles. These bonds guarantee that all the estate debts will be satisfied and that the remaining assets will be properly distributed to the appropriate heirs.” Information about executor bonds, as well as help obtaining them quickly and easily is available at Colonial Surety Company:
Can You Appoint A Professional Executor?
Yes. Although it is typical to appoint a close friend or relative to execute a will, there are no laws requiring this. There are many responsibilities involved in executing a will, so it often makes good sense to secure a professional fiduciary to serve in the role of executor. Doing so ensures that expertise is involved in closing out the affairs of the deceased as efficiently as possible, while freeing up friends and relations from additional stress during a time of grief. Though often lawyers, professional fiduciaries can also be accountants or other financial professionals, or even a bank or trust company. Generally, a hired executor is already bonded as a fiduciary, which is an additional way that a professional fiduciary can reduce time and worry while carrying out the intentions expressed in the estate plan.
Bonds For Professional Fiduciaries
With families counting on you, there’s no time to spare. As a direct, national fiduciary bond writer, Colonial Surety Company helps professional fiduciaries promptly meet specific bond requirements. Our digital portfolio of fiduciary bonds includes: administrator, estate, executor, guardian, personal representative, probate, surrogate, trustee, conservator and the list goes on. Because we are direct writers, we are prepared to meet specific obligee requirements, and our knowledgeable service team answers the phone when more help is needed.
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