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Undue Influence

A Will (or other transfer of property, such as a trust) may be canceled because of undue influence, or where the Will does not meet the Arizona requirements to be valid. A will may not meet Arizona requirements to be valid if the person signing the Will, the testator, lacked testamentary capacity (lack of sound mind) or if someone else exploited or took advantage of a vulnerable testator.

Basically, undue influence occurs when an individual exercises such control over the testator that the Will does not reflect the testator’s true intentions and desires. Instead, the will reflects the intentions and desires of someone else.

Factors for Determining Undue Influence

In determining whether undue influence was used, the courts look at all of the circumstances. Generally the court will focus on whether:

  • the influencer lied to the testator;
  • the Will was prepared and signed quickly, without deliberation or consideration;
  • the execution of the Will was hidden from others, such as family members;
  • the person benefited by the Will participated in having it drafted and signed;
  • the Will was inconsistent with prior plans;
  • the Will was reasonable in view of the testator’s circumstances, attitudes and family;
  • the testator was vulnerable to undue influence (i.e. had a medical or mental problem); and
  • the testator and the beneficiary had a close relationship.

Of course, not all influence is undue influence. To be undue, the influence must rise to the level of where the influencer causes the person to disregard his/her own desires and, instead, follow the directions of the influencer. If a Will was adopted because of undue influence, the Will can generally be cancelled. Or the gift to the influencer can be set-aside.

Presumption of Undue Influence

Anyone who helps a loved one prepare a Will, Trust or other transfer of property should be careful. Arizona law may require proof with clear evidence that they did not unduly influence the family member.

The burden of proof in litigation sometimes determines who wins the case. If the party who has the burden cannot satisfy the burden – cannot present sufficient evidence to satisfy the legal standard – the other party does not have to present any evidence to win the case.

In Arizona, a party who is trying to uphold a Will, Trust or other transfer may have the burden of proving that there was no undue influence if the presumption of undue influence arises. The presumption of undue influence applies if two elements exist:

  • he/she was “active in the preparation or procurement of the will” – for example, he/she initiated the idea, suggested specific dispositions, including to yourself, and arranged to have the Will prepared; and
  • he/she had a close personal relationship with the one who signed the Will – was their professional advisor or family member, for example.

Both of these elements must exist in order to require the party trying to uphold the Will to prove the absence of undue influence.

Where the presumption of undue influence arises, the proponent (the person trying to enforce the Will) then has the burden of proving with clear evidence that there was no undue influence.

Contact Our Experienced Estate Attorneys

Our probate and estate attorneys have experience handling a wide variety of Will contest, trust and other probate-related disputes. If you believe that an estate document or property transfer was the result of undue influence or you have questions regarding a probate dispute, contact the Scottsdale, Arizona estate lawyers at Berk & Moskowitz, P.C.