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Hi, this is Keith Davidson from Albertson & Davidson.  In this video, I want to discuss the difference between lack of capacity and undue influence.  And we talk a lot about these concepts on our videos, on our blog, on all of our websites, because it really is the most important part of a trust or will contest.  We’re almost always bringing a claim to try to overturn a trust or will based on lack of capacity or undue influence.

But those two claims are really quite different.

With lack of capacity, you’re looking at the parent, the elder, the person who created the trust or will.  And you’re trying to figure out did they have the mental requirements, under the law, to be able to create a trust or a will.  And in order to dislodge a trust or will, we have to find medical evidence that shows a mental defect existed at the time the trust or will was signed.  All of the focus is on the parent.

Now, on undue influence, the focus isn’t just on the elder.  There is one element we have to look and see if the elder was vulnerable to undue influence, but then after that, we’re looking more at a bad actor.  Somebody, under undue influence claim, came in and influenced the elder, coerced the elder, replaced the intent of the elder with their own intent and so we have to look at the actions of the bad actor.  What actions did they take?  Were they in a position of authority?  Were they controlling medications or food or access to family members and friends?  All of these factors come into play with undue influence.

And so, a lot of times, we like to say that undue influence is capacity light.  Meaning that you don’t have to prove an actual lack of capacity to succeed with undue influence, you only have to show that there was enough of a mental capacity issue to make the elder vulnerable to undue influence.

Once you have that, then the rest of the elements are going to focus on the bad actor, not just on the elder.  So that’s kind of a basic overview of the difference between lack of capacity and undue influence.