Undue Influence in a Will Contest or Estate Administration
I received a call yesterday similar to many others I have received over the years. Essentially, Dad died and the client just found out that shortly before his death he named one child beneficiary of lots of accounts, leaving essentially nothing passing under the Will, which had divided everything equally between 3 children.
Lou Ann Anderson, the Bell County Legal News Examiner has an article today about celebrity cases of undue influence. The stories are similar - shortly before death a new Will is executed or other property transfers done that undo a lifetime of the decedent's intent. These cases include Brooke Astor (her son and attorney were sent to jail for trying to defraud hundreds of millions from charity), Melvin Simon of Simon Shopping Malls fame (his Will months before he died was changed to leave all to his wife, and take out $150 million in bequests to charities), John "Buck" Jones, owner of the Carolina Panthers (his Will was changed a month before his death to leave control of Company to his wife instead of 3 employees as had been his long standing plan).
While these celebrity cases are titillating because of the names and dollar amounts involved, the same situation involves New Jersey families all the time.
There are competing concerns. First, a person is free to leave their money to whomever they please (other than 1/3 to a spouse) - children do not have a right of inheritance. Second, a person is not required to leave money equally among a group - many times one child gets more in the Will than others because the parent perceives that child's need or reward to be greater.
However, it is the person making the gift who is allowed to make these decisions - not the person getting the gift. The problem of undue influence arises when somebody essentially takes advantage of a person's reduced physical or mental state, or a situation of fear or dependency, and influences them to make an action they would not have otherwise takes.
The issue for a person who is claiming undue influence cases is one of proof. How do you prove a person was influenced to make a change to their estate plan and it was not an independent decision? There need to be witnesses and documents. Do you have to prove the undue influence, or does the person who got the money have to defend the gift? Kenneth A. Vercammen, Esq. has an excellent summary of the issues in Undue Influence As Defense To Will Or Power Of Attorney (New Jersey).
Generally, the person claiming undue influence (ie, the person getting less) has the burden of proof to show a court there was undue influence. See Conners v. Murphy, 134 A. 681, 682 (N.J.Err. & App. 1926); Pascale v. Pascale, 549 A.2d 782, 786 (N.J.1988). However, if the the person who benefited from a gift is in a confidential relationship with the person who made the gift (an attorney in fact under a POA, a person who the person who made the gift is dependent upon), then the burden of proof shifts to the person who got the gift to prove that the person making the gift had independent counsel in making the gift. See Haynes v. First National State Bank of New Jersey, 432 A.2d 890 (N.J. 1981); Pascale v. Pascale.
The presumption of undue influence is easier to raise with lifetime transfer then with transfers in a Will. Some lessons from this are that if you think that you were harmed by undue influence, gathering facts and acting quickly is key. If you plan to disproportionately benefit your heirs, you should seek legal counsel to act to protect that gift from a claim of undue influence.
My two prior posts have been about the 
If a person has a Will and dies, and a beneficiary doesn't like the terms, one grounds for challenging the Will is that the testator (person making the Will) was subject to undue influence when he made it. An example would be a person with 4 children leaving 100% of his estate to one child, who the person relies on. This doesn't mean that a person can't leave there assets to whomever they please, just that there are situations where people take advantage of a person's fragility to have assets funneled to them.
