last will

What is Undue Influence?

  • A woman suffering from minor cognitive issues receives numerous calls from a telemarketer. It’s clear that she is confused and doesn’t understand the details of the sale.
  • An older gentleman’s will has been consistent for decades, leaving the bulk of his estate to his children. A new aide begins isolating him from friends and family, warning that if he doesn’t change his will in her favor, he’ll have to go to a nursing home.
  • A hospital patient is visited by her daughter. While under light sedation, the daughter convinces her mother that she should become her new Power of Attorney.

You may have heard of a term called undue influence. It occurs when an individual in a position of power takes advantage of another person, pressuring them to make a decision that they would not otherwise have made. It usually involves some degree of manipulation. Undue Influence is a concept frequently referenced in cases involving elder financial abuse. This is because it encompasses situations in which inappropriate influence is used to deprive the senior of his or her ability to consent freely. The senior may be dependent on the individual who is exerting influence. Illness, whether physical or mental, may make the senior more vulnerable to persuasion in making a gift or executing a will. The influencer who is manipulating the senior often substitutes his or her own wish, and he or she benefits from doing so.

Warning signs of undue influence in an older individual’s affairs may include:

  • The senior’s complaints about being pressured or harassed;
  • A new caregiver who is isolating the senior and denying requests from family members and/or friends for visits;
  • Erratic or irregular activity in the senior’s financial accounts;
  • An increase in the senior’s gifting, especially if this is a change from his or her regular pattern of giving;
  • The appointment of a new Power of Attorney (POA), without apparent reason;
  • Modifications to the senior’s estate plan, including the creation of a new will or appointment of a new executor – especially if the change is abrupt and/or the senior is having cognitive challenges and/or appears to have a new caregiver in his or her life.

Gifts, contracts or estate planning documents that appear to be the product of undue influence can be challenged in a court of law. If it is clear that the transaction involved such influence, a judge may set aside the purported agreement. In the case of a will, it’s likely that a contest based on undue influence won’t occur until probate – after the testator of the will passes away. This is because exploiters don’t generally publicize the fact that they have exerted pressure or duress on the testator, and isolating the senior may be essential in order to conceal the exploitation.

What’s most important in preventing undue influence? Stay in constant touch with older family members, keeping the red flags in mind. If it appears that an influencer’s isolation tactics are in play and you suspect abuse, call Adult Protective Services or law enforcement without delay. Talk to the senior in your life about enrolling in a service that will enable trusted family members and/or professionals to keep an eye on financial information so that unauthorized activity that’s the result of undue influence can be preempted immediately.