Issue of undue influence comes up often in the context of contested probate proceedings. A relative dies, and when the heirs start going through the estate of the dearly beloved, it turns out that there is not much left. Apparently 3 months before her death the aunt transferred her $2MM Manhattan apartment to a next door neighbor. And she named that same neighbor as a beneficiary on her $1MM IRA account and on her $500K life insurance policy. The question then arises – were these transfers made out of free will or were these the result of undue influence?

Undue influence requires a finding that a person was restrained from acting independently, or was constrained to do that which was against her free will and desire. Generally, the burden of proving undue influence rests with the party making the assertion (usually those are the very upset disinherited relatives). However, where a confidential relationship is established, the burden shifts to the beneficiary (the very happy neighbor) to show that the transaction was fair and free from influence.

Proof of a confidential relationship requires evidence of circumstances that demonstrate inequality between parties, with control by one party over the other as a result. Was the aunt free to go to a lawyer of her choosing, did the aunt socialize with other neighbors and friends or did the neighbor control her life, because the aunt was paralyzed and had no access to a telephone? On the other hand, maybe the aunt and the neighbor had long standing romantic relationship, and the bequest was explained by the evidence of longstanding ties of affection?

The issue always turns on specific facts, and the trial court has an opportunity to see the witnesses, hear the testimony and make a credibility determination. In general, however, if you have an elderly relative – do try to visit her on a regular basis and be involved in her life.

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.