In some cases a deceased person’s Last Will and Testament or Trust may be challenged if there is evidence of undue influence. So, what is undue influence? It is a term used to describe a situation where one person exerts an excessive amount of control or pressure over another person, often resulting in that person making decisions that are not in their best interest. This can occur in a variety of settings, including business deals, legal proceedings, and personal relationships. Understanding what undue influence is and how to recognize it is important for protecting yourself and others from its harmful effects.

What is undue influence?

Undue influence is a situation where one person uses their power or authority to manipulate or pressure another person into making decisions that are not in their best interest. This can involve tactics such as emotional manipulation, threats, or coercion. Undue influence can occur in a variety of settings, including business deals, legal proceedings, and personal relationships. It is important to recognize the signs of undue influence and take steps to protect yourself and others from its harmful effects.

What is undue influence in Arizona?

In Arizona, undue influence is defined as “conduct by which a person unduly influences a testator in executing a will, when that person through his or her power over the mind of the testator makes the testator’s desires conform to his own, thereby overmastering the volition of the testator.” (Parrisella v. Fotopulos.) Put another way, “A person exercises undue influence when he or she overcomes the free will of another person, making that person’s desires conform to his or her own.” Stogner v. Middaugh (In re Estate of Olson) (Ariz. App. 2011)

To prove undue influence, the person challenging the will, trust, or transfer of property must show that:

1. The testator was vulnerable or susceptible to influence, such as due to age, illness, or dependency on the influencer
2. The influencer had the opportunity to exert undue influence, such as by being present during the creation of the document or having a close relationship with the testator
3. The influencer engaged in conduct that was intended to or had the effect of overpowering the testator’s free will and replacing it with the influencer’s will.

If these factors are present, the court may determine that the will, trust, or transfer of property was the result of undue influence and may take steps to unwind it.

Undue influence in estate planning.

In estate planning, undue influence can occur when someone pressures the testator to change their estate plan to benefit themselves or someone else. This pressure can come in the form of coercion, threats, isolation, or other tactics that are designed to overpower the testator’s free will and replace it with the influencer’s will.

If the estate plan is the result of undue influence, it may not reflect the true wishes of the testator. This can lead to disputes and legal challenges, as well as the distribution of assets in a way that the testator did not intend.

When a presumption of undue influence arises.

“A presumption of undue influence arises when one occupies a confidential relationship with the testator and is active in preparing or procuring the execution of a will in which he or she is a principal beneficiary. See In re O’Connor’s Estate, 74 Ariz. 248, 246 P.2d 1063 (1952).” Mullin v. Brown, 115 P.3d 139, 210 Ariz. 545 (Ariz. 2005)

Signs and Examples of Undue Influence

Undue influence can be difficult to recognize, as it often involves subtle tactics that are not immediately obvious. Arizona courts use a list of eight factors to help determine whether a party contesting a Will has established that the Will was procured through undue influence. Those factors are whether:

1. The alleged influencer has made fraudulent representations to the “testator” (the maker of the Will).
2. The execution of the Will was the product of hasty action.
3. The execution of the Will was concealed from others.
4. The person benefited by the Will was active in securing its drafting and execution.
5. The Will as drawn was consistent or inconsistent with prior declarations and plannings of the testator.
6. The Will was reasonable rather than unnatural in view of the testator’s circumstances, attitudes, and family.
7. The testator was a person susceptible to undue influence. (For example, maybe the testator was in poor health, isolated, or dependent on the influencer.)
8. The testator and the beneficiary had been in a confidential relationship. (In other words, the influencer had a close relationship with the testator and stood to benefit from the changes.)

See In Re Estate of McCauley.

Other signs of undue influence might include:

• The testator expresses confusion or uncertainty about the changes to their estate plan
• The testator has a history of changing their estate plan frequently, especially after the influencer becomes involved
• Isolation from friends and family, and
• A lack of access to information or resources.

Examples of undue influence can include a business partner pressuring their colleague into making a risky investment, a caregiver manipulating an elderly person into changing their will, or a romantic partner using emotional manipulation to control their significant other’s actions. It is important to be aware of these signs and take action if you suspect that undue influence is occurring.

Vulnerable Populations.

Vulnerable populations are particularly at risk for experiencing undue influence. This can include elderly individuals, those with disabilities, and those who are experiencing financial or emotional hardship. It is important to be aware of the potential for undue influence in these situations and to take steps to protect these individuals. This can include seeking legal advice, involving trusted family members or friends, and ensuring that the individual has access to resources and information. By being vigilant and proactive, we can help prevent undue influence and protect those who may be vulnerable.

Legal remedies for undue influence.

If you suspect that someone has been subjected to undue influence, there are legal remedies available. These can include challenging a will or other legal document that was created under undue influence, seeking a restraining order to prevent further manipulation, or pursuing criminal charges if the undue influence involved fraud or coercion. It is important to consult with a qualified legal professional who can advise you on the best course of action based on the specific circumstances of the situation.

Read our related blog entitled List Of Ways To Protect Your Inheritance.

How to Protect Yourself and Loved Ones from Undue Influence.

Protecting yourself and loved ones from undue influence starts with being aware of the signs. Look for changes in behavior or decision-making that seem out of character, sudden changes in relationships or financial transactions, and isolation from friends and family. It’s also important to have open and honest communication with loved ones and to seek professional help if you suspect someone is being manipulated. Taking proactive steps can help prevent undue influence and protect those you care about.

There are several steps that you can take to protect yourself and your loved ones from undue influence in estate planning. These include:

• Choosing a trustworthy and reputable estate planning attorney
• Creating an estate plan while you are in good health and of sound mind
• Being clear about your wishes and discussing them with your loved ones
• Avoiding isolation and maintaining connections with friends and family
• Being aware of the signs of undue influence and taking action if you suspect it is occurring

How to Identify and Challenge Undue Influence in Estate Planning

If you suspect that a will, trust, or other transfer of property was created as a result of undue influence, there are several steps you can take to challenge it. These include:

• Gathering evidence to support your claim, such as witness statements and medical records
• Filing a petition with the court to challenge the document
• Presenting evidence at a hearing to demonstrate that undue influence occurred
• Working with an experienced probate litigation attorney who can help you navigate the legal process

Legal Considerations for Unwinding a Will, Trust or Other Transfer of Property in Arizona

In Arizona, there are specific laws in place to help unwind a will, trust, or other transfer of property if it is determined that undue influence played a role in its creation. To prove undue influence, the person challenging the document must demonstrate that the testator was vulnerable, the influencer had the opportunity to exert undue influence, and the influencer engaged in conduct that overpowered the testator’s free will.

Steps to Challenge a Will or Trust Based on Undue Influence