Undue Influence Among Elders

Often, when a dispute arises over a deceased person’s estate, someone disappointed in their share will accuse someone who received more of having exerted “undue influence” over the deceased. What is undue influence, and how do you prove that someone has unduly influenced another person in the making of an estate plan?

What people often mean when they use this accusation is that they think the person “cozied up” to the maker of the will or trust in order to get more favorable treatment. Flattery is sometimes a component of undue influence, but Michigan law requires much more to take it into consideration.

Undue Influence Under Michigan Law

Generally speaking, there are two types of law in Michigan: statutory law, meaning laws (statutes) passed by legislators, and case law, in which a court makes a decision to answer a question of law that was previously unclear.

Michigan does not have any statutes that specifically give an undue influence definition. However, over the years, many people have filed lawsuits alleging their loved ones were influenced unduly, and courts have held forth on what behavior does, and does not, constitute undue influence. That body of case law has helped define what is necessary for this finding that can affect the will.

In order to prove undue influence in Michigan, three things are necessary:

• The person who was allegedly influenced disposed of assets in a way that was unexpected under the circumstances. For instance, it would be unexpected for an elderly woman to leave her estate to a home health care aide instead of a beloved grandchild.
• The person who was allegedly influenced was susceptible to influence. Susceptibility to influence usually involves some vulnerability such as physical frailty, cognitive decline, dependence on others, or isolation. These factors are common among older people, which is why so many of these claims involve seniors.
• The person accused had the opportunity to exert influence, such as a nephew who regularly visited his homebound elderly uncle, or a neighbor on whom a senior depends for transportation.

While the factors above are essential components of an undue influence claim, Michigan case law requires still more. Even if someone has the opportunity (and even motive) to influence a susceptible person, and an unexpected bequest results, it doesn’t necessarily mean that the influence was “undue.”

For a Michigan court to make a finding that an individual has been unduly influenced, “it must be shown that the grantor was subjected to threats, misrepresentation, undue flattery, fraud, or physical or moral coercion sufficient to overpower volition, destroy free agency and impel the grantor to act against his inclination and free will. Motive, opportunity, or even ability to control, in the absence of affirmative evidence that it was exercised, are not sufficient.” Nelson v Wiggins, 172 Mich 191; 137 NW 623 (1912).

In other words, the person being influenced must have been under such pressure that the will of the influencer was substituted for their own.

Burden of Proof

Ordinarily, the burden of proving undue influence falls on the person making the claim. However, if the person accused was in a fiduciary or confidential relationship to the susceptible party, the burden shifts to the fiduciary to prove there was no undue influence. A fiduciary is someone obligated to act in the susceptible party’s best interests, like a guardian or an agent under a power of attorney.

As you might expect, these cases often turn on the facts. The same situation can look very different depending on which facts are emphasized. Let’s say that an elderly man left his house and car to the home health care aide who had been caring for him for the six months before he made his last will. Previous wills had left those assets to a grandson.

Did the man leave his assets to the aide out of gratitude for her help and devotion, while his family rarely visited? Or did the aide take advantage of the man’s ill health and isolation to pressure him into changing his will? How the court rules will probably depend on the evidence and witness testimony presented, as well as which party bears the burden of proof.

Avoiding a Claim

There are steps you can take when making a will, trust, or gift to clarify that there was no undue influence involved and discourage will contests. For instance, you might choose to submit to an evaluation of your mental capacity by a medical professional around the time that you make your will. That will help to show that your thinking was clear.

Perhaps even more important is to make sure that the people to whom you leave your assets are in no way involved in the preparation of your will, even to drive or accompany you to the attorney’s office. It should be clear that the decision to make the will and the specific bequests was yours alone.

If you plan to make a bequest that might surprise the people who expect to inherit from you, tell your attorney why you are making those gifts. You might even include the reason for the gift in the will itself, such as if you are making a bequest to a family member, neighbor, or friend who was especially helpful to you in a time of need.

If you want to protect your estate against will contests, or if you are concerned that a loved one has been a victim of undue influence, you should consult an experienced Michigan estate planning and probate attorney. We invite you to contact our law office to schedule a consultation.