Testators have the right to dispose of their property as they please. Sometimes, though, a Will appears to be unjust to people whom you naturally assume should be the object of the testator's Will. When that happens, a question of undue influence arises. Has someone pressured the testator to create or change a Will so that it favors the person doing the pressuring? If so, this could be a case of undue influence. Undue influence can invalidate a Will.
At Heritage Law Office, our estate planning lawyer in Wisconsin will provide a thorough review of your estate and help you distribute property according to your wishes. If you are a beneficiary or, under normal situations, would have been a beneficiary and suspect a will was created under undue influence, it can be challenged. Contact our office online or at 414-253-8500 to learn more.
What Is Undue Influence of a Will Made in Wisconsin?
Undue influence refers to coercive or intimidating conduct that makes a person alter the terms of their Will or trust to benefit the person committing the misconduct. If the influence overcomes the testator's true intent, the resulting Will can be contested and subsequently invalidated. The property would then pass through intestacy law.
People exert undue influence over a testator by using misconduct to make the testator change the terms of a Will in a way that does not reflect the testator's true intent, but rather benefits the person exerting undue influence. Examples of such misconduct can include:
- Isolating the testator from friends and relatives
- Lying to the testator about the circumstances surrounding his or her beneficiaries and/or his or her estate
- Keeping the testator from consulting a preferred attorney
Keep in mind that undue influence is more than mere persuasion or advice even if the latter favors the person doing the persuading or giving the advice.
Examples of Undue Influence in Wisconsin
Undue influence is often the result of an imbalance in a relationship. Common examples include:
- Stepparent coercing the spouse to increase their inheritance or trust assets, which takes away assets from other heirs, like stepchildren.
- Adult children threatening their elderly parents to give them more via their Will.
- Caregivers who threaten an elderly person left in their care.
- Service providers, like doctors, dentists, therapists, and others, who use their positions to get assets intended for others.
Signs of Undue Influence in Wisconsin Estate Planning
Signs of undue influence can vary, but common things to look for include:
- Isolation from friends, family, or a social support system
- Dependency upon the abuser
- Abuser's use of the victim's financial assets
- Psychological abuse, threats, and intimidation
- Physical violence, including threats of physical violence
- Often the abuse is perpetrated against someone with diminished mental capacity or physical abilities.
Contesting a Will in Wisconsin and Proving That There Was Undue Influence
You can contest a Will in probate court if you expected to be a beneficiary or are a beneficiary but did not receive as much as you should have and suspect undue influence is the reason for it. They have the burden of proving that there was undue influence that altered the results of their inheritance. Typically, you want to be able to show the following with adequate evidence:
- The vulnerability of the testator
- The influencer's apparent authority
- The influencer's actions (or inaction)
- The resulting inequity.
Evidence you can gather to prove the undue influence includes:
- Statements from the testator, abuser, loved ones, neighbors, friends, service providers
- Digital communications, e.g., text messages, emails, social media posts
If probate court determines that there was undue influence over the testator's Will, the Will is invalidated and thrown out. Depending on your jurisdiction, there are three possible ways the court can disperse property after the Will is thrown out.
- Revive an old Will. If there was another Will that was written earlier by the testator and was not tainted by undue influence, that earlier Will can be revived. The testator's property will then be distributed according to the terms of the revived Will.
- Apply the state's intestacy laws. If there was no previous Will, the testator's property will be distributed under intestacy law, as if the decedent died without ever writing a Will.
- Strike undue influence provisions. In some rare cases, the court may be able to strike out the part of the Will that suffered from undue influence, while maintaining the other portions.
Keep in mind that the alleged wrongdoer has the right to defend against claims of undue influence in estate planning.
Contact an Estate Planning Lawyer in Wisconsin Today
If you suspect undue influence played a role in your loved one's Will or, alternatively, you have been accused of undue influence, contact Heritage Law Office either online or at 414-253-8500 to schedule a free consultation. We will review your case and provide your best legal options.