Undue influence is a legal term used by courts to set aside certain documents, like Wills, where through pressure or influence on the mind of the testator (the person who makes the Will), it is determined that his or her making of the Will is found not to be completely independent. However, all influences are not improper or fatal to upholding the Will. Persuasion, appeals to the heart or to gratitude for something past done may all be fair game. On the other hand, pressure that overpowers the testator’s mind over his or her better judgment is an act under which no valid Will can be made.
In describing the influence required for a finding of undue influence to be made a court has stated: “Undue influence in order to render a Will void, must be an influence which can justly be described by a person looking at the matter judiciously to cause the execution of a paper pretending to express a testator’s mind, but which really does not express his mind, but something else which he did not mean.”
Where undue influence is alleged, a court will look at the circumstances of the relationship as a relevant factor in determining whether a finding of undue influence is warranted. Another court has stated that: “The proof of undue influence does not require evidence to demonstrate that a testator was forced or coerced by another to make a Will, under some threat or other inducement.” A court will look at all of the surrounding circumstances to determine whether or not a testator had a sufficiently independent mind to withstand the competing influences. Influence alone will not lead the court to interfere but, it has been stated, the Will must be “the offspring of his own volition and not the record of someone else’s.”
Suspicious circumstances typically refer to the circumstances surrounding the preparation and signing of the Will and may loosely involve:
- Circumstances surrounding the preparation of the Will;
- Circumstances that cast doubt on the mental capacity of the person making the Will, and;
- Circumstances that show the testator was subject to, for example, acts of coercion or fraud.
Where suspicious circumstances are alleged, the burden of proof typically lies with the individual wanting to uphold the Will. In that respect, it is a very effective allegation.