Eight Signs of Undue Influence

In Arizona, a decedent's will or trust may be set aside when the court determines the document is the product of undue influence. Undue influence occurs when someone exerts such extreme influence over the decedent that the document reflects the desires of the influencer and not those of the decedent. Arizona courts look at eight factors when determining if undue influence occurred: Lies and Deceit We often find that an influencer has lied to the decedent in a pursuit of having a new will or trust executed. Oftentimes the lies are aimed to influence the decedent to remove someone from the decedent's will or trust by making them falsely believe a family member has betrayed them in some way or that the influencer is the only family member who can be trusted. Hasty Preparation If a will or trust was prepared hastily, it may suggest pressure was placed on the decedent to execute the document or, at a minimum, that the decedent had inadequate time or opportunity to obtain impartial advice and fully consider their decision. Hidden Preparation While many people do not discuss the terms of their estate plan with family, hidden preparation is one of the factors that may suggest undue influence occurred. The reason: if a will or trust is prepared in secret, the decedent or the influencer may not have wanted others to find out or get in the way. Active in Procurement If the influencer is arranging the estate plan, meeting with the decedent's attorney throughout the estate planning process, or telling the decedent's "wishes" to the attorney, it may indicate that the decedent's wishes are not being accurately conveyed. This conduct also indicates the influencer’s desire to control the decedent's actions and their heavy influence on the estate plan. Inconsistent with Prior Declarations If the decedent has always said she was leaving everything to her grandson and then suddenly excludes him, this unexpected change can raise eyebrows. Even stronger evidence of inconsistency occurs when an estate plan with multiple iterations over many years that consistently reflected the same terms is replaced with a new plan containing completely different terms. Unreasonable Did the decedent hate dogs, but their will leaves a bequest to a dog shelter? Sometimes a provision for distribution in an estate plan is only unreasonable when you know the decedent's views, attitudes, or family situation. In determining whether an estate plan is the product of undue influence, the court will look at whether the estate plan is unreasonable in light of the decedent's particular circumstances. Vulnerable If the decedent suffered from an impairment or condition that made them susceptible to being influenced, the court will take that into account. Vulnerability can be a critical factor in an undue influence claim because if the decedent was not vulnerable, it can be difficult to convince the court that such a person was manipulated into changing their estate plan. Close Relationship If the decedent was in a close relationship with the influencer, the influencer was more likely to have built the level of trust and respect needed to convince them that changes to their estate plan should be made. The court looks at the totality of the circumstances in determining whether undue influence occurred. It is possible for undue influence to take place where all eight factors are present or when just a few of the factors are present. Other causes of action may be available to undo an improper or illegitimate estate planning document, and a qualified probate and trust litigation attorney can walk you through your options based on your specific circumstances.


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