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Undue influence: A three-part test

Every state has its own definition of undue influence. The key word, however, is not "influence" - it is "undue."

For example, married couples have a great amount of influence over one another, and so this influence, while strong, is not considered "undue" under the law.

But other relatives, family members and caretakers may be proven to have exerted "undue" influence because of their close relationship with the signer of the will (the testator).

Influence that is characterized as undue is defined as including:

  • Threats
  • Undue flattery
  • Fraud
  • Misrepresentation
  • Coercion

The main thrust of the court's judgment regarding undue influence rests on whether or not the testator made decisions of his or her own volition, or whether someone "overcame the donor's free will" and made the testator change his or her mind.

In fact, here in Michigan a three-factor test is used to determine whether or not undue influence occurred. Undue influence exists when:

  1. There is a confidential or fiduciary relationship between the grantor and a fiduciary.
  2. The fiduciary has an interest in which he or she benefits from the transaction.
  3. The fiduciary had an opportunity to influence the grantor's decision in the transaction.

The testator's competence is not at issue in determining whether undue influence exists.

If you feel that someone has had undue influence over the will of your loved one, the first step is to contact an attorney experienced in trusts and wills.

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