If someone takes advantage of a person’s reduced mental and/or physical state because of their proximity to the person, and influences a situation by exploiting fear or dependency, they aren't just doing something improper. They may also be committing grounds for invalidating a Will. If someone signing a Will takes an action they may otherwise not have taken as a result of the undue influence of another, the Will is not valid. Generally, if a person comes forward to contest a will claiming undue influence, then the burden of proof lies with them. They will have to be able to provide witnesses and documents to substantiate their claim. However, if the person who benefited is in a “confidential relationship” with the Will signer or their designated representative, then the burden of proof falls to the gift recipient who then has to prove the gift giver had independent counsel in making the gift.

If this sounds confusing, that's because it is. The term “confidential relationship” is a legal term that is the subject of many battles in Court. From there, lawyers have to prove that the person in a “confidential relationship” used that relationship under “suspicious circumstances.” This is a fact-sensitive minefield for a Court to determine after extensive testimony and a Judge's determination of credibility. Generally a person is free to leave their money to whomever they please, and that they do not have to leave equal shares among the heirs. Also, children do not have a right of inheritance. In fact, it is often the case that one child gets more left to them in a will than their other siblings simply because their parent(s) perceive their need as greater, for whatever reason. An unequal distribution does not mandate a Will contest.

As a practical matter the initial burden of proof is a difficult one, but Plaintiffs often overcome it. The burden then shifts to Defendants who have to attempt to prove that they did not unduly influence their loved one. What ends up happening is that everyone who knew the person or was around at the time gets to talk about the relationship between everyone, in open court, for all the world to see. It is a time of airing great amounts of dirty laundry. It is expensive and unpleasant. This is the main reason why Will contests can get so ugly.

Having said that, it is up to the person giving the gift to decide on who, if anyone, gets what, and it is not the decision of the person who is getting the gift. If you think that your interests have been harmed by undue influence of another in a Will, then you should act quickly and try to gather as many facts and supportive evidence as possible. The other lesson to learn here is that if you are someone who plans to leave disproportionate gifts among your beneficiaries, then you should secure proper legal representation and leave a trail of evidence as best you can to make it obvious you are doing so outside of the influence of anyone else – so that this kind of litigation doesn't happen to your loved ones.