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David Toback, Attorney at Law
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Undue Influence Can Cause Problems When Changing Estate Planning Documents

We have talked in the past about how careful you have to be when changing a will or other end of life documents, particularly when the documents are those of someone who may be ill, infirm, elderly, or sick. But we have not talked about the exact legal standards for challenging a will. They’re important to know, not so that you can be in a position to challenge one, but so that if you are drafting or altering estate documents, you know what kind of situations may lead themselves to challenges by others later on.

When Undue Influence May Arise

Changes to a will, trust, or other estate planning document that are perceived as having been done as a result of undue influence will be subject to challenges. Undue influence exists when someone imposes their will or desires upon another to such an extreme as to overcome another’s free will. In common terms, we may think of it as “taking advantage” of someone else.

To see if there was undue influence upon another, we will usually look to:

  • The age, health and mental state of the person whose estate documents were changed;
  • The relationship between the deceased, and the person who may have benefitted by any changes. Usually a “confidential relationship” must exist; and
  • Whether the transaction is unusual, extreme, or benefits one person to a large extent

Examples of undue influence may include, for example:

  • A trusted, live in caretaker convincing a trusting elderly person to alter a will in the caretaker’s favor;
  • Someone threatening another to coerce them to change estate documents
  • Exerting pressure on a mentally disabled adult to get them to alter estate documents; or
  • Relatives that rarely visit someone, but then start to visit more frequently as the person gets ill, followed by a change in estate documents in those relatives’ favor.

Generally, any time someone is dependent upon another, and then alters estate documents in that person’s favor, there will be suspicion of undue influence.

Lesson is Be Prepared

Remember that estate documents aren’t just wills and documents that leave assets to people, but can include health care directives and powers of attorney.

The idea is not that someone’s estate documents can never be altered. Certainly, people change their mind, and circumstances may change. A person is free to include or exclude whomever they want from their estate planning documents.

Ultimately, it is important to remain aware when circumstances are such that suspicion may be aroused later on if estate documents are changed. If they are, it may be a good idea to have an estate planning attorney help you with the changes to make sure there’s proper documentation and execution to defeat any challenge to the changes that may occur in the future.

Don’t risk expensive and emotional litigation over your desires. Make sure your estate planning documents are drawn up and executed correctly. Contact Tampa business and probate attorney David Toback to discuss your needs and make sure your estate reflects your needs as your life changes.

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