LeClair Ryan has published an article, Undue Influence in Virginia: Does the Undue Influencer Have to Be a Beneficiary? The article begins as follows:
Without question, one of the most common estate disputes we see centers around allegations that one person unduly influenced another person to write (or re-write) a will or trust. The typical situation involves an elderly person, no longer capable of living independently, who becomes increasingly reliant on another person for care and assistance.
Under Virginia law, undue influence occurs when a testator’s free will is destroyed due to the influencer’s close relationship with the testator. This theory is one of the most common methods used to attack a will or trust. There are different ways to prove undue influence. Undue influence can be shown either by direct proof or by circumstantial proof. Circumstantial proof, which is far more commonly used, may be shown by the satisfaction of certain factual elements (which are set forth below).
The typical undue influence situation is as follows: an elderly parent (“Parent”) moves in with (or nearby) a particular sibling (“Caretaker Child”). Caretaker Child becomes increasingly involved in Parent’s medical care and finances. Parent changes his or her will and/or trust to benefit Caretaker Child to the disadvantage of Parent’s other relatives. Parent dies. Caretaker Child probates the will and/or distributes copies of the trust. The disadvantaged relatives cry foul and accuse the Caretaker Child of unduly influencing Parent to re-write the will and trust. Caretaker Child’s actions with Parent may have been perfectly honorable but they could also have been malignant. Litigation ensues and the courts must determine the operative estate planning documents and the proper beneficiaries.
Posted by Lewis J. Saret, Co-General Editor, Wealth Strategies Journal.