Both fictional and real-life accounts of undue influence have fascinated us for generations. Hollywood renditions of shocked family members during readings of a deceased person’s will are a common dramatic story arc. When family members find out that a change was made that disinherits those who would normally inherit the family fortune in favor of some unusual beneficiary, the family members scramble to hire lawyers to contest the will.
While real-life incidents of undue influence may be less dramatic than Hollywood versions, undue influence is not at all uncommon in today’s world. It has become a growing problem that plays out repeatedly. Greed, desperation, sense of entitlement, and other ill motives frequently lead to persons taking advantage of elderly persons or other persons who are not sufficiently able to say “no.”
Persons who engage in acts of undue influence may be family members, friends, neighbors, caregivers, or other persons who become close to the susceptible person who is victimized. Worse yet, many times, undue influence may not be discovered until after the death of the victim. Family members or those who originally stood to inherit are left to sort out exactly what happened, when, and what can be done about it.
Under Ohio law, there are four elements of undue influence:
All four elements must be proven in order to demonstrate that undue influence was exerted.
One common misperception is that victims are required to prove some type of physical or emotional abuse, or threat of abuse to prove undue influence. Abuse or threats of abuse are not required. Even subtle efforts may constitute undue influence.
It is also not necessary to prove that the victim of undue influence was mentally incompetent. Even persons who are capable of making decisions for themselves are able to be unduly influenced so long as some factor of susceptibility is demonstrated such as physical illness or physical infirmity.
Typical indicators of persons attempting to unduly influence a susceptible person include:
In the estate planning context, undue influence can apply to changes in a person’s last will and testament, their trust documents, or their beneficiary designations. Undue influence can also result in large gifts of money or property.
When there is a finding of undue influence, Courts will fashion remedies that will nullify the effect of the undue influence if at all possible in order to void the change that was wrought by the undue influence. If a will was changed because of undue influence, the prior will that was executed before the change will control the disposition of the deceased person’s property. If there was no will, then the deceased person’s estate is distributed in accordance with the laws of intestate succession. If a gift was made, the property that was gifted must be returned.
A finding of undue influence may also result in victims being able to sue the influencer/wrongdoer for money damages and attorney fees. The goal is to make the victims whole.
Taking action early is the best approach to preventing or remedying undue influence. However, legal remedies can sometimes still be available after the victim’s death. If you’re looking for an attorney for wills, Plakas Mannos has the best, including Attorneys Jim Mannos, David Dingwell and Hunter Miller. Contact one of our estate planning attorneys if you believe a family member or loved one has been the victim of undue influence.
David Dingwell is a partner at Plakas Mannos where he provides probate, estate, and trust administration and planning services, as well as ethics and professional conduct advisory services.