Undue Influence can set aside the Will or Living Trust

#5a: Durable Power of Attorney for Primary Applicant

Complete the name of the person whom you want nothing at all to do with the this matter
Hopefully your case will never have to go to Probate. However, just in case, list 3 selections for who will be nominated as your conservator is this happens and then the alternative nominations.
Select as many items as you want as to what authority you want to give your attorney-in-fact to be able to do while you are incapacitated
Select as many items as you want as to what authority you want to give your attorney-in-fact to be able to do while you are incapacitated regarding your personal care

When this Durable Power of Attorney will become effective

Undue influence is essentially a term whereby a Will or Living Trust or other Estate Planning Document could be ruled to be invalid due to the actions of another person on the testator or person who made the Will or Trust. Brian D. Lerner states that undue influence is a term in Estate Law which basically means that the person who signed the Will or Trust which ultimately gives property to somebody else was not done of his own free will.


Use of the words “duress,” “menace,” and “undue influence” seems redundant. Most modern cases treat these terms as synonymous and refer only to undue influence.  Brian D. Lerner shares that the definition of undue influence is as follows: (a) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. Thus, undue influence, explains Brian D. Lerner, is  a factual issue that will differ depending on the facts of each particular case.  In determining whether a result was produced by undue influence, all of the following shall be considered:

The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.

Another factor to look at with undue influence would be the influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification states Brian Lerner.

A third factor to determine if there is undue influence would be the actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following: Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep; Use of affection, intimidation, or coercion; Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes; The equity of the result. Regarding undue influence, evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship. Thus, explains Brian D. Lerner, there are many factors  to determine if there is undue influence.

However, you should not that evidence of an inequitable result, without more, is not sufficient to prove undue influence. Thus, explains Brian Lerner, just being unhappy about who gets what is not sufficient to show undue influence.


So what exactly does undue influence mean asks Brian Lerner? Undue influence is conduct that subjugates the testator’s will to the will of another and causes the testator to choose a disposition of property that he or she would not have chosen in following his or her own inclination or judgment. In other words, explains Brian D. Lerner, undue influence, then, is the legal condemnation of a situation in which extraordinary and abnormal pressure subverts independent free will and diverts it from its natural course in accordance with the dictates of another person.

Thus, the pressure on the testator must have been so overpowering that he or she was not a free agent when the will was made. Therefore, undue influence, or duress is not easy to prove. However, if somebody did actually perform acts rising to the level where the testator was under undue influence, Brian Lerner states you should take the matter to Court in order to get what is fair.

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