Undue Influence and Duress

Undue influence and duress often form the basis for an estate contest but may be extremely difficult to prove. It is necessary to establish that the influence exercised amounted to a moral coercion which restrained independant action and which forced the testator to do that which was against his or her free will and desire.

In order to prove undue influence and duress it is necessary to show motive, opportunity , and the actual exercise of that undue influence. Motive can usually be established since it is almost always present. The benefits to be received by the petitioner offering a will for probate can be shown to prove motive.

Opportunity may not be as easy to prove. In a recently decided case,the court noted that "the petitioner lived out of state, was not present when the will was executed, had no input with respect to its contents until receiving an email from the decedent... "

Even more difficult may be proving the exercise of undue influence. It will be necessary to show exactly what was done --and when-- to cause the decedent to make a will favoring the beneficiary.That usually means introducing the testimony of reliable eyewitnesses who actually saw and heard what happened or having documents proving that undue influence was exercised.

While it may be possible to use circumstantial evidence to prove your case, this evidence must be strong and significant. Merely making a conclusory statement as to what you think happened will not be enough to establish that undue influence occurred.Remember that because the person challenging the validity of a will also has a strong interest in the outcome of the contest, the court will pay little or no attention to self-serving statements offered without any hard proof.


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