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What role can undue influence play during probate?

On Behalf of | May 31, 2022 | Probate Litigation |

Georgia families who have just experienced the loss of a loved one who has been a strong influence in their lives may have mixed feelings when it comes to the reading of the will and where the estate assets will end up. Family members will feel the acute loss of the parent, grandparent or other guiding presence and desperately want something of theirs to keep with them.

Although the source of conflict is often that feeling of personal loss or resentment at a gift another relative received from the estate, there may be cause for concern if questions arise about the undue influence that person may have used to benefit from the decedent’s deteriorating physical or mental state. When this happens, it is essential to discover the legal process for initiating a legal challenge of the estate.

What is undue influence in estate litigation?

An agreement cannot be binding if there is evidence of undue influence in contract law. When a person or entity holds sway over or has influenced the decisions of one of the parties to the contract, it casts doubt in the eyes of the law of that person’s free will in entering the contract.

Under Georgia law, the testator must have freely entered into the execution of a will or other estate document. A successful challenge must prove the presence of undue influence if another has:

  • preyed upon the testator’s sympathies, affections, or fear.
  • misrepresented facts.
  • imposed duress.
  • substituted the testator’s wishes for their own.

The element of volition must be present for the contract to be valid, and sadly, the exploitation of a person’s competency often plays a role in the fraudulent exploitation of the elderly. Undue influence may occur not only in the distribution of inheritances in a will. It can also happen in the administration of a will or trust, especially if the individual who compiled documents also played a role in altering them while the individual was alive.

What is the interconnection of undue influence to elder abuse?

With the rise of elder abuse cases since the 1970s, many states have implemented reporting laws for professional groups that work with the elderly through the establishment of Adult Protective Services (APS) agencies. There are estimates that one in ten senior citizens over 60 who live at home suffer abuse, and 20% over 65 are victims of financial exploitation. This also occurs in nursing homes through relationships with professional caregivers.

Although undue influence is difficult to detect, mainly because it occurs behind closed doors, it is possible to expose and prosecute over time and with an in-depth investigation.