Unduly Influencing the Creator of a Will

Our firm is often contacted by individuals who anticipated inheriting from a loved one, only to find out, after the loved one passes away, that the loved one executed a will or trust for the benefit of someone who is suspected of having inappropriately abused their relationship of trust and confidence with the loved one in procuring the will.  Such situations invite an “undue influence” analysis.

“[A] person unduly influences a testator or testatrix in executing a will when that person through his power over the mind of the testator or testatrix makes the latter’s desires conform to his own, thereby overmastering the volition of testator or testatrix.” In re McCauley’s Estate, 101 Ariz. 8, 10, 415 P.2d 431, 433 (1966).

In determining whether a contestant has established that a will has been procured through undue influence, certain factors have been treated as significant indicia of the presence or absence of such influence. [citation omitted]. These factors include the following: Whether the alleged influencer has made fraudulent representations to the testatrix; whether the execution of the will was the product of hasty action; whether the execution of the will was concealed from others; whether the person benefited by the will was active in securing its drafting and execution; whether the will as drawn was consistent or inconsistent with prior declarations and plannings of the testatrix; whether the will was reasonable rather than unnatural in view of the testatrix’ circumstances, attitudes, and family; whether the testatrix was a person susceptible to undue influence; and whether the testatrix and the beneficiary have been in a confidential relationship.

 McCauley’s Estate, 101 Ariz. at 10-11, 415 P.2d at 433-34, (emphasis added). “Although none of the enumerated factors standing alone or even in combination with some others, may be sufficient to sustain a finding of undue influence,10 the force of the combination of all these factors may be sufficient to raise a question of fact as to the existence of undue influence.” Id.

Typically, the burden of proving that a will has been procured by undue influence is on the person contesting the will. See Id.  However, the Arizona legislature has enacted a burden-shifting statute which shifts the burden of proof to the proponent of the will if certain factors are met:

  1. The proponent of the will (person in favor of the will) had a confidential relationship to the creator of the will;
  2. The proponent of the will was active in procuring the creation of the will;
  3. The proponent of the will was active in the execution of the will; and
  4. The proponent of the will is a principal beneficiary of the will.

OR

  1. The preparer of the will or the preparer’s spouse or parents or the children of the preparer’s spouse or parents is a principal beneficiary of the will.  (This paragraph does not apply if the will was prepared for a person who is a grandparent of the preparer, the children of a grandparent of the preparer or the respective spouses or former spouses of persons related to the preparer.)

See A.R.S. § 14-2712(E).

However, spouses of a deceased person are likely precluded from the scope of the burden-shifting law. “[T]he marital relationship existing between testatrix and proponent is not one of the confidential relationships giving rise to the presumption of undue influence.” McCauley’s Estate, 101 Ariz. at 11, 415 P.2d at 434.  Accordingly, the burden-shifting statute does not come into play in many cases.  That said, “[a] proponent’s marriage to testatrix does not completely insulate him from a possible finding that he unduly influenced his spouse in executing her will.” Id.  A will can still be found to have been the product of undue influence, but the burden of proof remains with the person contesting the validity of the will.

“Where the contestant has presented evidence from which a reasonable person could conclude that the person charged with exerting undue influence had a disposition to exercise such influence, that he had an opportunity to exercise undue influence, that some influence was exerted, and that the will seems to result from such influence, a question of fact is presented.” Id.

If you have questions about whether a will or trust is the product of undue influence, contact Holland Law Group now to speak with our experienced attorneys about your individual case.

Flagstaff Attorney Shares How Estate Planning Can Help Avoid Costly Probate

Our lawyers are often asked what “probate” is and why it is viewed as being “so bad”.  Probate is simply the process of gathering the property of a deceased person, paying debts and distributing any remaining property to designated individuals.  While this explanation seems harmless enough, the reason people are so anxious to avoid probate is because of the large time-commitment and expense associated with the probate process.  The designated personal representative (often referred to as the “executor”) will not only have to file multiple documents with the Superior Court seeking appointment, but will also be required to attend a class on how to administer an estate.  The personal representative may also have to post a sizeable bond.

Once a personal representative is appointed, the probate administration process begins with inventorying all of the deceased person’s assets.  If the deceased person does not provide an itemized listing of all of their property and financial accounts, an asset search may be necessary – including the hiring of a special kind of a private investigator.  While the inventory is taking place, often those who believe that they will ultimately receive property from the estate will become impatient and either demand immediate distribution or simply begin taking property that they want.  However, distribution to heirs (if there is no will) or devisees (if there is a will) can only occur after all creditors of the deceased person have been given the opportunity to submit a claim against the estate and all allowed claims are paid in full.  If assets are distributed to heirs/devisees prior to payment of creditor claims, those who participated in the distribution(s) could be held personally liable to the creditors.  Additionally, the probate intestacy laws governing how the property of a deceased person is ultimately distributed when there is no will may not result in the distribution the deceased person and the heirs anticipated.  Thus, the probate process is riddled with pit-falls which make the process nearly impossible to navigate without the help of a competent lawyer and, possibly, other professionals.

On the other hand, an estate plan, complete with a fully-funded revocable living trust, powers of attorney, last will and testament, healthcare directive, transferring documents, and, in some cases, other planning documents, can help to avoid the probate process while giving clear direction to and providing protections for the person administering the estate.  Done properly, an estate plan will leave loved ones in control of their assets throughout their lives and seamlessly transfer administrative authority to a successor administrator (called a trustee) at the death of the person who created the estate plan.  The attorneys at Holland Law Group provide competent  and personalized estate planning services to fit any situation.  Contact us today to schedule a free initial consultation with an experienced estate planning attorney.

Flagstaff Attorneys Support Local Youth

Holland Law Group is proud to support our Flagstaff youth –FHS Softball Appreciation Letter.  Although our law firm provides quality legal representation throughout Arizona, our attorneys feel a connection to the northern Arizona communities we serve.  The attorneys at Holland Law Group are not only great attorneys, they are honored to be a part of our community.

 

Northern Arizona Attorneys

Individuals often believe that if they want the best attorney, they need to hire the largest and most expensive mega-law firm out of the largest cities. This misconception is often promulgated by the large advertising budgets of these large firms.

Those who live in northern Arizona know that quality services do not require large, fancy offices in the heart of downtown Phoenix. Quality and affordable legal representation is found in our own community.

The attorneys at Holland Law Group live in northern Arizona, are connected to northern Arizona, support northern Arizona, and know and understand the issues unique to our community. At the same time, the highly qualified attorneys at Holland Law Group provide expert services which exceed much of what will be found in large metropolitan areas.

When facing a legal issue in northern Arizona, remember to look locally for high quality legal counsel. The representation you need is already in your community.

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