Challenging a Will: The Four Elements of Undue Influence

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Having a will detailing your loved one’s wishes after his or her death is one of the most relieving things. The will saves you and your loved ones from costly court battles and lengthy probate proceedings. There are times, however, that the wishes outlined in the will do not reflect what you expect from the testator. There might be multiple grounds for this, but the drafting of a will under undue influence is among the most common reasons.

Getting a will lawyer from firms such as Day Shell & Liljenquist, L.C. to get recourse for this injustice is the first step. Proving the will was made under undue influence from someone else, and therefore its details do not reflect the testator’s wishes, is, however, challenging.

The following are the primary elements of undue influence, which should be sufficiently proven in court to get the will overturned.

Confidential Relationship

For undue influence in the creation of a will to exist, a confidential relationship should exist between the testator and the defendant. The relationship exists when there are confidence and trust placed by one person in the fidelity and integrity of another. This relationship is not necessarily a blood one. In most cases, undue influence in a confidential relationship arises when a weaker, vulnerable party is taken advantage of by a stronger party in a domestic, social or personal setting.

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Active Participation

There should be some activity on the defendant’s part in the procurement of different elements in the will. Active participation involves more than suggesting that the testator do something but instead involves facilitation by the defendant for the testator to do it.

If, for instance, the testator goes to an attorney to draft a will accompanied by the defendant with no instigation or request from him or her, this does not constitute active participation.

Undue Profit

This is the most obvious element of undue influence in drafting a will. In the contesting of a will, undue influence can be ascertained after evaluating the defendant and testator’s relationship. The court will also evaluate the past expressions of the deceased’s intent. These two elements are evaluated in relation to the gifts bequeathed on the defendant to determine if they are unnatural.


This is an element in some cases of undue influence where a defendant uses false statements to manipulate the testator to gift him or her something. Fraud in the context of undue influence is generally the hardest element to prove. This is because there might be no evidence of the statement and you cannot fully establish why someone would make certain statements.

Even if you have proof that a defendant made a false statement, you should additionally demonstrate that he or she knew the declaration was not correct.

The contesting of wills has broken up many families and other relationships. Rather than ignoring the tampering of a deceased’s wishes for fear of broken relationships, get a legal way out for any doubts you might have. Though it might not seem like a good option at the time, this will iron out all doubts and strengthen your future relationships while honoring the deceased’s wishes.

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