It happens more often than you think.  A loved one passes away, the family gathers to grieve, and then a distant relative or a stranger shows up and says the deceased left them everything in their Will.  The common culprits in these instances tend to be caregivers, younger “friends” to older decedents, and devious family members that saw an opportunity to take advantage of an elderly relative.  But what can you do at this point if the Will is signed, sealed and delivered; don’t you have to adhere to its terms?  Not necessarily.

I looked at the Will and the signature appears to be valid, the witnesses signed, and it was notarized; doesn’t that mean that the Will is unarguable?

In Washington, if a Will is properly executed and witnessed, then it is presumed to be valid.  However, that presumption can be overcome.  While you won’t have an easy time proving your case, if the facts are on your side, then you should have a good chance of success.  The most common method of overcoming a seemingly valid Will when it appears someone may have taken advantage of the deceased is an argument of Undue Influence.

But isn’t everyone vulnerable to influence at some degree? 

Yes, but that is why the argument is called Undue Influence; the influence has to be well above and beyond what one would consider normal.  Luckily, the Washington Court(s) have developed a set of factors that the Court will take in to account when determining if Undue Influence was present; these factors are called the “Dean Factors” and consist of the following:

Major Factors

  1. Fiduciary Relationship. If the perpetrator is in a close (confidential or fiduciary) relationship with the deceased, the perpetrator was likely in a position to impose their influence onto the decedent. These tend to be found in situations where a vulnerable person would be expected to trust, and rely to a large extent, on another for aide or assistance in any manner.

  1. Participation in the Estate Planning. If the perpetrator helped to create the decedent’s Will, trust, or other Estate Planning Document, then that is a factor to be considered. The general question that is asked by the Court is, “was the perpetrator constantly present during the creation of the document(s).”

  1. Unusually Large Bequest. This is a subjective evaluation, based on the beneficiary’s relationship and role in the decedent’s life, and how it compares to the size of his or her bequest relative to the roles/bequests to others who might be expected to take.

Minor Factors

  1. Age, Health and Mental Vigor. While not a strong always a determining factor of undue influence, it can be instrumental if you can clearly show that the decedent was not of strong mental and physical constitution at the time the document was created.

  1. While opportunity of the perpetrator should always be shown, it becomes instrumental in cases where you can show that a perpetrator “created” the opportunity. A perfect example is a person isolating the individual from friends and relatives for the purposes of taking advantage of them.

  1. Naturalness of the Act. Another factor the Court will take in to account is whether or not the bequest appears to be natural under the circumstances. For example, it would be natural for a decedent to leave their entire estate to their only surviving child.

It is important to note that the Court does not require that all the above factors be present to prove undue influence; however, you do have to show enough evidence of at least some of the above factors to indicate by a clear and convincing standard that the deceased was unduly influenced.  This generally means that the burden of proof is placed on the person claiming Undue Influence existed, so be prepared to fight your way uphill.

My loved one is still alive, but there is someone in their life that appears to be trying to unduly influence them; what should I do?

If your loved one is still alive and someone is beginning to isolate them, is trying to have them sign documents when they are not mentally capable, or is otherwise trying to take advantage of a vulnerable adult, then I would highly suggest doing something about it immediately.  If you wait until the deceased passes away, then you will have to fight uphill to show that the Will was a product of undue influence.  However, if the individual is still alive but being taken advantage of, you might be able to stop things before they get out of hands.  The most common method of doing this would be to file a Vulnerable Adult Protective Order for purposes of stopping the potential attempt to isolate and unduly influence; these will be discussed in another posting.

So what should I do if I believe a loved one is being, or has already been Unduly Influenced?

Simply speaking, you need to hire an attorney to help you either a) stop if from occurring, or b) showing that it occurred and correcting the Will.  The sooner you contact an attorney, the sooner they can help you form a strategy and the better your odds of putting things right.

If you have any further questions regarding the protection of a vulnerable adult, or if you are in need of assistance in contesting a Will that was the product of Undue Influence, Nowakowski Legal PLLC would be glad to assist.  Contact us for a free consultation today!

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