My clients often ask me “After my death can someone challenge my estate plan?” My answer to that question is that anyone can challenge your estate plan – you can’t stop someone from doing so – but is there a valid reason to challenge your estate plan? One of the most often seen challenges to estate plans is undue influence. Undue Influence is when another person applies a significant amount of control over another to change the outcome of the persons’ estate plan, and if proven will void a will or a trust.
The elements of undue influence may be that the beneficiary of the estate plan occupies a fiduciary or confidential relation with the creator of the plan. Examples of types of fiduciary or confidential relationships may be caregivers, attorneys, financial advisors, to name a few. A question could be whether or not the beneficiary of the estate actively participated in the preparation of the estate plan? For example, did the beneficiary schedule the appointment with the attorney and drive the creator of the plan to the attorneys’ office to have the plan set up and signed? Or did the beneficiary receive an unusually or unnaturally large part of the estate, such as leaving all of the assets to the next door neighbor, who often visited the creator of the will, rather than the person’s closest family members?
In a recent case out of Washington State, a mail carrier befriended an elderly woman who lived alone at home and influenced her to change her will and leave all her assets to her new “friends”. The Washington Supreme Court found that conditions of undue influence were met and the will was determined invalid.
Close friends, trusted advisors, and relatives should be suspect of new companions that create a close, confidential relationship with an elderly person.