Inspirational Quote

Undue Influence is when someone pressures another in such a way that the person being influenced is not acting by their own free will; they are being coerced into taking a certain action. Undue influence often arises when a friend family member falls ill. For example, mom has been diagnosed with cancer and her boyfriend influences her to change her estate plan so that all mom’s assets go to him instead of to her kids. The plan is oftentimes carried out in secret and others don’t know about what has been done until after the one being influenced passes away.

Undue influence is an argument that can be brought up in court to undo what the bad actor has done. Continuing the above example, mom’s children can file a petition to have the boyfriend’s actions undone if the court finds that the boyfriend was guilty of undue influence on mom. A will can be thrown out, property transfers can be undone, and the bad actor’s name can be taken off accounts. In order to win a case for undue influence, one must prove not just that the decision maker was persuaded by another to take a certain action, but that the person was coerced. Meaning, either the influenced person did not have the capacity to make the decision, or

they were tricked into doing so.

When analyzing the case, the court will look at all kinds of evidence,

including:

Delaware law recognizes that:

... Undue influence is an excessive or inordinate influence considering the circumstances of the particular case. The degree of influence to be exerted over the mind of the testator, in order to be regarded as undue, must be such as to subjugate his mind to the will of another, to overcome his free agency and independent volition, and to compel him to make a will that speaks the mind of another and not his own. It is immaterial how this is done, whether by solicitation, importunity, flattery, putting in fear or some other manner. Whatever the means employed, however, the undue influence must have been in operation upon the mind of the testator at the time of the execution of the will ...

Matter of Langmeier, Del.Ch., 466 A.2d 386, 403 (1983).

The essential elements of undue influence are: (1) a susceptible testator; (2) the opportunity to exert influence; (3) a disposition to do so for an improper purpose; (4) the actual exertion of such influence; and, (5) a result demonstrating its effect. Nardo v. Nardo, Del.Supr., 209 A.2d 905, 912-13 (1965); Matter of Langmeier, 466 A.2d at 403. In re the Estate of West, Del. Supr. 522 A.2d 1256, 1263 (1987)

In many cases, undue influence arises when the decision maker lacks capacity. Capacity means that the individual knows what is happening and understands the consequences of their decision. When someone falls ill or has a disease like dementia, they are in a vulnerable spot and can be taken advantage of because they become unaware of the actions that are being taken or the full effect of what they mean.

If an individual lacks capacity, then hopefully they had executed a power of attorney while they were healthy and now their agent can act on their behalf. An agent has a duty to act in the incapacitated individual’s best interests. If proper planning was not done, then a guardianship may be needed. This is where a court process is initiated so that a judge can appoint someone to act on the incapacitated person’s behalf.

There are always two sides to every coin. In some situations, the decision maker intends to be favorable to one person over another. For example,one child is a caretaker to the parent and the parent’s will is more favorable to that child. If the child called the lawyer to set the appointment and drove the parent to that appointment, that could look like undue influence when in fact, it was not. The parent could have had the intent that the caretaker child receives more inheritance. A situation like this might lead to litigation if the parent did not plan in advance, while they were healthy and obviously had capacity. We suggest that the client communicate to the other children and explain what the will says and why one child will receive more. It is an unwise surprise after the parent has died to learn that a sibling will receive more inheritance.

Delaware law provides a formal mechanism under which potential heirs can be informed of the plan and must either challenge the plan immediately or be bound by it once the parent has died.

Many people need to look out for undue influence and capacity issues, including attorneys, financial advisors, bankers, notaries, and medical personnel. Things to look out for:

Undue influence can cause an individual to take actions that they normally would not. These actions can have adverse consequences on friends and family. But most importantly, the individual’s intent is not carried out. Instead, the bad actor’s intent is carried out. It is important that each individual gets to decide what happens with themselves and their belongings during their life and at death. It is important to have legal documents in place to best protect yourself from being unduly influenced in the event that your health deteriorates.