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Monday, January 1, 2018

The why and the how of undue influence allegations

I've received a few questions lately from readers who want to know more about undue influence and how that concept is used to challenge a will. This seems like a good topic to look at more closely. This one is going to be packed with legal info, so be prepared to take notes!

There are three basic elements of undue influence:
1.  Someone influenced the testator in some way, such as threats, force, trickery, lies, persuasion, shaming, isolation, control over daily living, or persistent requests. It could be a combination of more than one method.
2.  The influence overpowered the testator’s mental or emotional freedom so that the testator felt he or she had no choice but to go along with it.
3.  The testator made a will that he or she would not have made without that influence.

If you allege undue influence against a specific will in court, you have to prove that all of these elements existed. Proving one or two of them is not enough. The end result of all of these elements is that the testator ended up signing a will that was more about what the influencer wanted than what the testator wanted. In our legal system, a will like that is not valid because the testator did not make it freely and voluntarily.

Here are some examples of situations in which a person was unduly influenced to make a will that he or should would not have made otherwise:
- An elderly mother is persuaded by her youngest (adult) daughter to make a will that leaves out all of the other children. The youngest daughter does this by telling her mother repeatedly that the other children don’t really care about their mother the way the youngest daughter does and by presenting the actions or words of the other children in falsely negative ways.
- A disabled, elderly man is told by his caregiver that unless he makes a will leaving a significant sum to the caregiver, the caregiver is going to put him into a home where he will be alone and mistreated.
- A son takes his elderly mother to a lawyer and directs his mother to make a will leaving her house, which is almost her entire estate, to the son. He rushes her through the process, and answers questions for her when the lawyer asks them. She doesn’t want to get her son into trouble and is confused as to what is going on, so she just signs the will.

As you can see from looking at these examples, the evidence will include a lot of testimony from family members about what other people did or didn't do. There will be quite a bit of blame and finger-pointing.

There are two major steps in the process of proving undue influence. The first is a chambers application. Chambers is an open courtroom but the procedure is not a full trial. The purpose of the chambers application is very specific: you are there to prove that there is a genuine issue of undue influence that must be heard by a trial judge.

A trial is a long, stressful, expensive process. The reason you go through chambers first is so that the court can weed out the cases that should not be going to trial. The chambers judge is not deciding whether or not you have a good chance of winning; he or she is only deciding whether there is a real issue to go to trial. This step is necessary because, as you can imagine, estate litigation is an emotional powder keg. Sometimes people are challenging wills because they think the will is unfair or they are greedy or they just really hate the people who are getting the estate. People can be emotional rather than rational when it comes to their reasons for challenging an estate. None of those things mean the testator was unduly influenced, so the judge will try to rule out the cases that are being brought for no good legal reason.

If you lose the chambers application, you are not permitted to sue the estate for undue influence. If you win the chambers application, your matter will be given a trial date.

The second major step is the trial itself. This is where the witnesses are called and documents are examined and the trial judge hears all of the evidence. At the end of the trial, the judge will decide whether or not the testator was unduly influenced into making a will that he or she did not really want. 

You will find that it could well take years to get through both of these steps. Leading up to the trial, you will be involved in taking affidavits, examinations for discovery, filing documents, and possibly many other steps. Be sure you can make this kind of commitment if you're thinking of challenging a will.




1 comment:

  1. Another excellent piece of Estate Law information.
    (There are two major steps in the process of proving undue influence. The first is a chambers application. Chambers is an open courtroom but the procedure is not a full trial. The purpose of the chambers application is very specific: you are there to prove that there is a genuine issue of undue influence that must be heard by a trial judge.) [LB]
    Lynne, is the Chambers Application the same or similar to a Trial Sitting?

    http://trialcounsel.ca/how-trial-sittings-work/
    webeye

    ReplyDelete

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