Most people do not like to think about their own mortality, but sometimes it is necessary such as when establishing a will. And since a will includes our final wishes, it is not something we typically want to be contested by those left behind. One way in which wills can be contested is if undue influence over you occurred during the writing process. Luckily, there are a number of ways to reduce the likelihood of your will being contested in this way, but there is no guarantee.
What is Undue Influence?
Undue influence is influence over a vulnerable person which impedes on their right to make their own, informed decisions. One common outcome of undue influence is for wills to suddenly be changed resulting in the influencer making substantial monetary gains. However, it is important to remember that not all influence counts as undue influence.
For example, your daughter asking to be left something particular in your will counts as an influence, but it is not undue. On the other hand, if the caretaker you rely on for day to day assistance pressures you into changing your will in their favor, that will likely be viewed as undue influence.
Avoid the Appearance of Undue Influence
One way in which you can protect your estate from undue influence claims is by avoiding the appearance of undue influence in the first place. Do not involve any of your beneficiaries in your estate planning — this includes having them drive you to your attorney’s office. This could later be viewed as undue influence by those who wish to contest your will.
Avoiding the appearance of undue influence is especially important if you plan to give your primary caregiver a sizable portion of your estate. These are the people most often accused of being influencers, so you do not want to lend any credence to those types of claims. You may want to leave a bit more to your son who took care of you for the past couple of years, but do not give your other children reason to suspect you were being manipulated by him.
Explain Your Decisions to Beneficiaries
Another important step you should take is to talk to your family about any reduction or removal changes within your will. “Surprises” in wills are more likely to be contested, so attempt to limit the surprise factor by explaining the contents of your will. Your reasoning for why you made the changes you did may prevent beneficiaries from contesting your estate.
You can also write a letter explaining the choices you made within your will to leave with your attorney. However, it is still recommended that you speak with your family and other beneficiaries about the contents of your will as well.
Prove Your Physical & Mental Competency
Just because you are physically and mentally well at the time you drafted and signed your will does not mean you always will be. To prevent anyone from claiming that you were not of sound mind or in good health when you signed your will, it is a good idea to be checked. You can request a competency test from your attorney or a physical exam from your physician around the time you sign your will.
Additionally, videotaping your will signing can be effective at showing you were not influenced as well. But this is generally not necessary if you have already passed an examination from your physician.
Use a No-Contest Clause
No-contest clauses can be an effective deterrent against undue influence claims in certain circumstances. If you believe someone will contest your estate, a clause like this will mean they are written out of your will if they attempt to contest and fail. However, in Pennsylvania no-contest clauses may be bypassed if there is probable cause involved. For example, if you suddenly change your will to leave everything to your caretaker and cut out your family, there may be probable cause that undue influence played a role.
Also keep in mind that no-contest clauses only work to prevent people who are already named in your will from contesting it. If one of your children stands to gain nothing from your estate, they have nothing to lose by contesting it — other than attorney fees.
Properly Execute Your Will
While this is not directly related to undue influence, it is also important for your will to be properly executed by an attorney. An improperly executed will is more likely to be contested, and you do not want to make contesting your estate any easier for those who might attempt to do so.
There are many ways to combat undue influence claims against your estate — with some being more effective than others. However, there is no way to defend against your estate being contested 100% of the time. In the United States up to 3% of wills are contested, which is a shockingly high amount. Luckily, if you follow some of the strategies outlined in this article you will reduce the likelihood that this happens to your estate.
Protect Your Estate Against Undue Influence with Noel & Bonebrake
If you still need to draft or want to make edits to your will, the attorneys of Noel & Bonebrake can help. Not only do we have experience with drafting wills, trusts, and estate plans, but we have also successfully defended contested wills. Contact our Law Office today to learn more about how we can help you draft, edit, or defend your will if the need arises.