What Is 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).

As your loved ones age, they might grow increasingly susceptible to outside influence as their own mental faculties begin to weaken. Unfortunately, abusers and manipulators wait on the outskirts for these opportunities and they are not afraid to take advantage of the vulnerable.

You will often see this in cases involving undue influence. But what exactly is this phenomenon? How do you identify it, and what can you do about it?

What is undue influence?

Cornell Law School sets the definition for undue influence. Undue influence occurs with the involvement of a minimum of two parties. One party serves as the perpetrator, while the other party is the victim. The perpetrator then exerts control over the victim in order to sway their opinion.

Under this form of influence, the victim will make decisions that seem out of character. They may even do things that they would have never done if they were thinking straight at the time, which is often what tips loved ones and relatives off to the fact that something is terribly wrong.

Undue influence often occurs in positions of power and sway

In order to have an undue influence case, the perpetrator also needs to hold a position that would cause the victim to hold their word in higher regard automatically, too. This can include anyone from caretakers to legal advisors to family members or friends. The perpetrator essentially abuses their trust to get the victim to do what they want.

The purpose is often to rewrite a will or parts of an estate plan to better suit the goals of the perpetrator. If you notice any suspicious red flags like out of character behavior, you can speak to legal counsel to decide how to combat this potential case of undue influence.

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.

How can you prove undue influence?

Proving undue influence can be difficult in many situations. However, if someone is in a position of care (a fiduciary relationship), certain legal precedents apply.

In the state of Michigan, a three-factor test is used to determine whether or not undue influence occurred. According to Michigan law, 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.