If a family member feels that he or she was improperly left out of a will, it can stack anger on top of the grief of losing a loved one. There are legal steps a person can take if it is felt the testator – the person whose will is in question – was “unduly influenced” by someone else.

What, exactly, is “undue influence,” and what does it take to prove it occurred? The term means that a testator was coerced into acting not of his or her own free will, but because of pressure from someone else. Successfully contesting a will by proving someone exerted undue influence is difficult, but possible.

First, it must be shown that the testator was vulnerable to influence and manipulation. Often, this is a matter of mental capacity. A person who is suffering from dementia or Alzheimer’s disease may not understand how the actions they are being pressured to take will affect their loved ones.

Second, it must be shown that the alleged influencer had the power to influence the testator and took steps to prevent the testator from exercising his or her free will. Examples may include isolating the testator from other family members, threatening the testator or providing false information to the testator to motivate the testator’s actions.

Finally, it must be shown that the influencer’s actions led to an inequitable result – that is, the testator’s true intent was not reflected in the will.

A rebuttable presumption of undue influence

If a lawyer who prepares the will benefits, or a non-relative caretaker benefits from the will, a rebuttable presumption of undue influence may be created. This means instead of requiring the party who is alleging undue influence prove their case, the onus is on the attorney or the caretaker to prove there was no undue influence.

A rebuttable presumption of undue influence may also be warranted if a family member who acted in a fiduciary capacity benefits from a will, particularly if it was drafted or modified at a time when the testator was susceptible to undue influence.

These cases are complex and can be difficult to prove. It requires an experienced probate lawyer who understands what evidence is necessary to prove undue influence, how to uncover that evidence, and how to present it in an effective manner.