Fiduciary Litigation: How Undue Influence Unravels Wills and Trusts in Court

It’s not uncommon for some family members to try to convince their loved ones to grant them specific property rights during the estate planning process. Undue influence, however, goes beyond mere persuasion.

Undue influence typically involves a person (or multiple people) coercing someone into changing a will or trust in a way they otherwise wouldn’t. This sort of act is forceful enough that the victim ultimately doesn’t make choices of their own free will.

For the family of a deceased person, discovering that their loved one was a victim of undue influence can be emotionally devastating. It can also lead to serious economic consequences. For example, if a dying father is manipulated into writing his wife and disabled child out of the will, the family may struggle to support themselves.

Some families of unduly influenced people mistakenly believe that it’s too late to take action if their loved one has passed. Whether the victim was influenced by a fiduciary (like a personal representative, trustee, or estate executor), a caretaker, a family member, or someone else in a position of trust, an attorney for will contests and disputes may be able to help families seek justice.

After the passing of a loved one, the family members have an opportunity to contest their will, any trusts they created, and other elements of their estate. Estate disputes can be messy, complicated, and emotionally fraught. They become even more difficult if the person accused of undue influence or other misconduct is a fiduciary.

In the context of estate planning, a fiduciary is someone entrusted to act in the best interests of the creator of the estate. Key fiduciary roles include:

Unfortunately, some fiduciaries take advantage of their position of trust and act in a way that benefits themselves instead of the estate. Fiduciary litigation is the legal process of holding a fiduciary accountable for breaching their duty of care.

The following are some of the most common types of fiduciary litigation:

Fiduciary litigation and undue influence intersect when the person accused of undue influence is in a fiduciary role.

Uncovering and proving undue influence in wills and trusts is notoriously challenging. Sometimes, it can be difficult to determine where ordinary influence ends and undue influence begins. However, a case of undue influence is likely to be legally actionable if the following are true:

This is one of the most important factors in undue influence cases. Many people can be convinced to make decisions (about estate assets or otherwise) that they otherwise wouldn’t. However, undue or improper influence happens when the victim is vulnerable in some way.

Because many cases involve elderly victims, diminished mental capacity and Alzheimer’s disease are two of the most common vulnerabilities perpetrators exploit. However, undue influence occurs with many other types of vulnerability, as well, including:

Some family members who suspect undue influence may be hesitant to say anything because they believe their loved one wasn’t impaired or vulnerable enough to be targeted as a victim.

Undue influence cases are complex and highly individual, so the best way to find out whether legal action is appropriate is to speak with a qualified fiduciary litigation attorney.

These cases generally involve a trusted person taking advantage of a victim’s vulnerability. However, vulnerability alone isn’t sufficient to prove that someone was a victim of undue influence.

For the perpetrator to have the opportunity to exert undue influence, they typically must have a confidential relationship with the victim or serve in a position of trust or authority. Perpetrators of undue influence are often (though not always) in one of these positions of trust:

The victim’s interactions and relationship with an alleged perpetrator are central to any claim of undue influence.

For example, someone who’s creating a will probably won’t be unduly influenced by a cousin they see a few times a year. However, if the alleged perpetrator is a long-time financial advisor, the individual would likely be far more susceptible to excessive persuasion.

Anyone familiar with elder abuse or claims of undue influence can tell you that many perpetrators follow the same playbook. A case is more likely to be legally actionable if the perpetrator relied on any of the following methods:

These tactics are clearly unethical, but they’re hard to prove in many cases, especially if the victim is already deceased. While it’s sometimes possible to uncover evidence of undue influence after the fact, the best way to protect those you care about and hold bad actors accountable is to play an active role in your elderly loved one’s life.

Many of the tactics listed here would qualify as elder abuse on their own merit. However, they only become evidence of undue influence if the victim changes their estate plan in a way that’s inequitable or illogical.

For example, imagine that a mother’s will specified that her property should be divided between her three surviving children. In the last few months of her life, she hired a live-in caregiver. After her death, her children discover that she had changed her will to leave everything to the caregiver.

This result is an inequitable one, and it also seems illogical and inappropriate in light of the mother’s short relationship with her caregiver. In this instance, a probate attorney could probably make a strong case for undue influence.

The best way to remedy undue influence is to catch it early on. Victims of undue influence often don’t discuss what they’re going through with family members, so it’s especially important to be vigilant.

The following patterns of behavior may indicate that your loved one is being unduly influenced:

Diminished mental capacity or cognitive decline doesn’t indicate undue influence by itself. However, your loved one may be targeted if they aren’t in possession of their full mental faculties. Staying involved in your loved one’s life could prevent them from being victimized.

Many people become more isolated as they get older. This creates an opportunity for bad actors to attempt to get close. If your loved one is isolated and largely dependent on a single individual (especially a caregiver), their chances of becoming a victim of undue influence increase substantially.

Some victims of undue influence become inexplicably tense or anxious. They may seem even more so in the presence of the perpetrator.

Perpetrators of undue influence sometimes lie to their victims to create distance between the victim and their family members. If your loved one suddenly seems wary or outright hostile (especially if they’ve suddenly become close to a new person), it may be a warning sign.

If your loved one is missing money or valuables and can’t (or won’t) explain why, they may have been pressured into giving them up. Similarly, if they’ve historically been good with money but can’t account for their finances now, they may be allowing someone else to control their funds.

Many families aren’t aware of this red flag until the will surfaces. If someone makes significant changes to their estate plan shortly before death, there’s a reasonable chance that they’re experiencing undue influence.

Before contesting a trust based on undue influence, a probate or estate planning attorney will investigate the claim and gather evidence. Although each case is different, they all have certain investigative steps in common.

Not all undue influence cases involve diminished mental capacity, but many do. For this reason, an investigating attorney will usually request access to the victim’s medical records from around the time the will or trust was created or changed.

If the records indicate that the victim was suffering from cognitive decline or a major illness when the changes were made, it may strengthen the attorney’s case.

This part of the investigation is especially critical if the victim has already died. Those closest to the deceased can describe their state of mind, physical and mental limitations, and overall demeanor around the time that the influence is believed to have occurred.

For instance, if the victim seemed markedly more isolated or was spending more time with the perpetrator when they changed their estate planning documents, such observations might support a claim of undue influence.

Sometimes, the professionals who were tangentially involved in changing a will, trust, or other estate planning document may have valuable insights to offer.

In Florida, a will can be amended by adding a new document called a codicil. The codicil can be made “self-proving” with an affidavit signed in the presence of a notary.

An attorney investigating potential undue influence may interview the notary present at the time. In some cases, the notary may be able to shed some light on the relationship between the testator and the witnesses present.

Some perpetrators are careful not to leave a paper trail when they exert undue influence on a vulnerable person. However, not all of them cover their tracks. Attorneys will often try to access the victim’s texts, emails, social media messages, or other communications from around the time of the changes to the estate plan.

If the perpetrator used digital communication to threaten, coerce, or pressure the victim into altering estate planning documents, their communication records can serve as valuable direct evidence in court.

Perpetrators in undue influence cases might also take advantage of victims in other ways.

For instance, if a caregiver convinced an elderly patient to change their will, the caregiver may also have transferred money from the victim’s bank account, forged checks, or stolen credit cards. A careful review of the victim’s financial records might uncover evidence of other misconduct.

Proving undue influence in court is often far from a simple task. Once an experienced probate attorney has investigated the case and presented key evidence, the court will decide whether the evidence supports the following essential elements:

You might wonder how undue influence affects a will if the court determines that your loved one was a victim. Under Florida law, a will is void if the court finds that the testator was unduly influenced. If only a portion of the will was influenced, the court might choose to void only the portions that were changed under duress.

If the undue influence your loved one was subjected to stemmed from a fiduciary breach in estate planning, the process of litigation is a little different.

In most civil cases involving undue influence, the attorneys for the victim’s family are responsible for proving that the influence occurred. However, in Florida, it’s often simpler to prove undue influence if the perpetrator was a fiduciary.

This is thanks to a principle known as the presumption of undue influence by a fiduciary. The legal representatives of the deceased individual and their family must be able to prove the following:

If these three criteria are met, the court can presume that the fiduciary committed an act of undue influence. The burden of proof then shifts to the fiduciary, who must prove that they didn’t exert influence on the decedent.

There’s no way to guarantee that you or a loved one won’t become a victim of undue influence. However, you can decrease the risk dramatically by taking certain preventive steps.

It’s never a good idea to rush into estate planning. However, early planning is important for another reason: It helps ensure that you’ll be of sound mind when creating documents (and therefore much harder to influence).

Talking about estate planning can be uncomfortable. However, when you involve multiple advisors and family members in key decisions, it will be much more difficult for any single party to take control.

If you’re concerned about a family member failing to honor your wishes, it may be wise to select an attorney or financial institution to oversee your will, trusts, or both.

Cases of undue influence often lead to large changes in an estate plan. However, not all major changes are the result of undue influence. If you make a sudden revision (like disinheriting someone or deciding to leave a sum of money to a caregiver), take the time to explain the change and your reasoning to your loved ones.

When you thoroughly document each meeting with your estate planning attorney and each alteration to your will, your loved ones will be able to tell if a particular change was made in accordance with your wishes or not.

No one expects to have to endure fiduciary litigation while mourning the loss of a loved one. Probate court has a reputation for being stressful, but fiduciary litigation often puts an even greater strain on the family. Secrets are exposed, inheritances hang in the balance, and family relationships may suffer.

If your loved one was the victim of undue influence (and especially undue influence committed by a fiduciary), you likely want to hold the perpetrator accountable. You also want to ensure that your loved one’s assets are distributed according to their true wishes.

Working with the right fiduciary litigation attorney in Orlando can help you accomplish these aims. At William C. Roof Law Group, we assist clients with estate planning, probate litigation, and challenges to wills and trusts.

If you think your loved one is a victim of undue influence or suspect that a fiduciary has breached their duty, contact us to schedule a free initial consultation.