Natalia Vander Laan
When a will or a trust is being challenged, the allegation of undue influence occurs quite often. This is because people, especially the elderly, are often susceptible to improper encouragement when creating estate planning documents.
Undue influence occurs when inappropriate sway deprives a creator of an estate plan of freedom of choice or substitutes their choice for the influencer’s own desires. The claim of undue influence is based on the premise that the parties do not deal on equal terms in a relationship where a person in whom trust is reposed is in a position to exert unique influence over the dependent party. But undue influence is more than a mere suggestion or even manipulation. It must appear, either directly or by justifiable inference from the facts proved, that the influence destroyed the free will of the trust’s or will’s creator.
The creator of a will or trust must be susceptible to undue influence due to their position in a relationship. For example, people with disabilities or mental impairment who are dependent on others can be predisposed to suggestions from their caregivers or family members. Undue influence over such vulnerable people can even become a form of elder abuse.
The person displaying undue influence must have the opportunity to use the influence. Therefore, to prove undue influence, one must show that the person had a special relationship with the victim. The opportunities for undue influence exist in confidential relationships between spouses, siblings, parents and children, guardians and protected persons, doctors and patients, even attorneys and clients.
Additionally, the person employing undue influence may manage to isolate the victim from other people to discourage or prevent the victim from seeking different advice.
Furthermore, an unusual disposition or distribution in a will or trust, such as a large gift to someone who is not a natural heir, may create the suspicion of undue influence.
It is very difficult to establish undue influence. A person contesting a will or trust bears the burden of proof by a preponderance of evidence, which means that evidence must establish that undue influence is more likely to be true than not true. But that burden shifts if the contesting party establishes the existence of a fiduciary confidential relationship.
Under Nevada law, a gift, or a transfer, also in a will or trust, is presumed invalid as a result of undue influence, fraud, or duress if the gift is to a person who drafted the transfer document, a caregiver of the transferor who is a dependent adult, a person who materially participated in formulating the dispositive provisions of the transfer document, or to a person who is related to any person described here. That presumption can be overcome in three ways: by clear and convincing evidence to the contrary, if the share of the estate received by the transferee is not greater than what it would be under the laws of intestacy, or, lastly, by having an independent attorney review and certify, in writing, that the transfer is not the product of fraud, duress, or undue influence.
Consequently, persuasion, manipulation, pressure or even influence alone is not sufficient to successfully establish a claim for undue influence, unless there is the presumption of invalidity. A person alleging undue influence must show that the creator of a will or a trust was deprived of free will when creating a document. It is a difficult burden because it is impossible to know what someone who is no longer available to testify was thinking.