Most folks will acknowledge that an adult of sound mind is free to give his money and property to whomever he pleases, both during his lifetime and after death, as directed by his estate plan. Such an acknowledgement, however, is subject to qualification, particularly when the soundness of the giver’s mind is called into question. This can arise in a variety of scenarios, often when the giver makes someone new the object of his affections and bounty. Consider, for example, what can happen when Dad, after making promises to bequeath his estate to his children and/or grandchildren, suddenly finds himself a new companion.
What often unfolds next is Dad’s children begin voicing concerns about the new companion’s interest (think, avarice) for “Dad’s money”. The children, understandably protective of Dad’s economic well-being, become apprehensive as to the possible evaporation of their respective shares of Dad’s estate. If Dad should change his will and alter his long-standing estate plan in favor of someone new, we have the makings of a nasty legal drama, replete with charges of undue influence. But just how does a court determine the existence of undue influence? At what point does Dad’s legitimate right to change his mind regarding the disposition of what is rightfully his to begin with become the legitimate object of legal scrutiny?
As one court noted, every will is the product of some kind of influence. The distinction in a dispute involving allegations of undue influence is whether, in our example, Dad’s new girlfriend exercised her influence to the point that his last will and testament was more the expression of her will than his. Briefly stated, a court examines allegations of undue influence by looking at whether the influencer (i.e., Dad’s girlfriend) gained an unfair advantage over Dad’s estate by means which reasonable people would regard as improper. In this regard, the court will first inquire as to the existence of a confidential relationship between the testator (the giver) and the alleged influencer. In our example, we can assume Dad and his girlfriend shared a confidential relationship.
Assuming the existence of a confidential relationship, a court will then look for evidence as to the existence of one or more suspicious circumstances.  The following circumstances will signal a court that Dad’s new will may well have been the product of undue influence:
- Dad’s girlfriend participated in the preparation of his new will or in the destruction of his prior will;
- Dad did not have the benefit of independent advice in the preparation of his new will;
- The new will was executed in secrecy or haste;
- The will reflects a change in Dad’s attitude toward others;
- The new will effected a change in Dad’s plan of disposing of his property;
- Dad’s new dispositive plan was such that reasonable people would regard it as unjust; and,
- Dad was susceptible to influence.
How the above factors are considered and how much weight each factor may be given by a court will vary from case to case. Cases involving allegations of undue influence are highly fact specific. The above example is offered as a guide and hopefully will serve as a basic roadmap in looking at issues of undue influence when a family member changes his or her estate plan to favor a new companion.
© 2/14/2017 Charles A. Ford of Hunt & Associates, P.C. All rights reserved.
 In re Kelly’s Estate, 150 Or 617 (1935).
 In re Estate of Reddaway, 214 Or 410 (1958).