Trusts & Estate Law – Undue Influence in the Context of Wills


As people get older, they can start to lose their ability to think clearly. This can have wide ranging effects, including an inability to properly understand or communicate how they want to dispose of their property when they die. Unfortunately, there are those that recognize this weakness and attempt to take advantage of it. A particularly insidious example of this when someone attempts to improperly influence an elderly person’s final wishes regarding the disposition of their estate.

For example, consider a relatively common situation where a parent requires assistance with living on their own or their personal care. You might notice that they tend to forget things and are having trouble running their finances. To try and keep them comfortable, you hire a caregiver. Over the years, your parent becomes quite dependent on the caregiver. The caregiver begins to help with almost every aspect of your parent’s day-to-day living, including becoming involved in their financial matters. Ultimately, the caregiver ends up living with your parent for a few months before their death. After their death, you discover that unbeknownst to you, your parent has transferred all of their assets into the name of the caregiver. You believe that your parent did not intend to give all their property away to the caregiver.

Did the caregiver improperly influence your parent to give their property away?

When there are suspicious circumstances as to whether someone has overwhelmed the will of a will-maker (called a “Testator”) to give property away, courts can consider whether someone unduly influenced the Testator. If the court finds that the Testator was unduly influenced, the court has the power to reverse the property transfer.

When determining whether the free will of a Testator was dominated by another individual, the court will review all the circumstances surrounding the relationship between the two parties. To do this, the court will analyze whether a person was in the position to dominate the will of the deceased. The court would have to undertake a careful analysis of the situation, attempting to fully appreciate the relationship between the caregiver and the Testator. The court will review medical evidence from the Testator’s doctors, testimony from the family, and also consider whether the deceased received legal counsel in advance of disposing of their property.

If you have concerns regarding the disposition of your parent’s estate it is vital to seek legal counsel without delay.