People influence others every day, and most types of influence simply persuades a person to make a certain decision–where to eat, what to buy, who to like, you get the idea.

Sometimes influence can get out of hand and become “undue.”  What separates normal influence from undue influence?  Simply put, undue influence is coercion.  It typically occurs when a person has a weakened mental state (such as with dementia or Alzheimer’s) and her intent is replaced with the intent of the undue influencer.  In other words, the Will or Trust the decedent creates no longer represents her intent, it represents the intent of the wrongdoer.  The wrongdoer is said to have “supplanted the intent” of the decedent (that term always makes me think of brainwashing—another good analogy).

The weakened mental state required to establish undue influence is not unlike the mental defect needed to prove lack of capacity.  Yet, with undue influence, the various elements of capacity are not required.  For example, capacity for the creation of a Will requires that a person knows (1) the nature and extent of their property, (2) their relationships to the persons who are to receive property under the Will, and (3) that they are making a Will.  And a Will is presumed valid unless the person lacked capacity at the very moment they signed the Will.  Thus, a person with dementia, who may have good days and bad days, could conceivably have capacity on the day of signing a Will and then lapse back into incapacity the next day.

When there is little or no medical evidence around the Will signing date, proving a lack of capacity at the time the Will was signed may be difficult.  But proving undue influence is another matter because all we need is a weakness of mind, plus some facts showing that weakness was taken advantage of by the wrongdoer.  Once established, it’s irrelevant whether a person had capacity when signing a Will.  Instead, the question turns on whether the person’s intent is reflected in the Will.  This is why I call undue influence “capacity lite.”

What’s more, with undue influence we have the ability at times to shift the burden of proof on to the opposing party (unlike capacity where the burden always remains on the person contesting the Will).  And that is a huge advantage when trying to overturn a Will.  How do we shift the burden?  We must prove that (1) the wrongdoer was in a confidential relationship with the decedent (such as principal and agent, or caregiver, etc.), (2) the wrongdoer participated in the Will creation, and (3) the wrongdoer profited from his actions (i.e., he received something under the Will or Trust).  Once established, the burden is passed on to the wrongdoer to prove that he did NOT engage in undue influence, which is very difficult to overcome.

In sum, undue influence can be a powerful weapon in trying to overturn a Will or Trust, when used properly.  And it can give a person contesting a Will or Trust some hope when capacity appears hard to prove.