When you sign your will, it’s best to do so in the presence of witnesses. Some jurisdictions may even require this. If yours does, then there may be certain criteria for choosing your witnesses. All of these requirements exist to ensure that the testator, or person drafting the will, has testamentary capacity, or knows what they’re signing and that no one has undue influence over them.
California’s Probate Code 21380(a) describes how anyone maintaining a relationship with the testator can be deemed to have exerted undue influence over them. If someone is engaged in a fiduciary relationship with the transferor at the time of the signing, whether a shareholder, business partner or employee, they must be closely scrutinized to see if they exerted some type of undue influence over the testator.
If a caregiver that’s been employed within a 90-day period before or after the drafting of the will is listed as a beneficiary, then their ability to influence the testator’s writing of their will may be called into question. The same may occur if one of the testator’s relatives or their caregiver is slated to benefit greatly according to the will.
How vulnerable a victim appears to be, their age, educational level, illness, injury or disability will greatly impact whether a probate judge determines an undue influence has occurred. Any evidence that suggests that the testator has been isolated or subject to emotional distress may affect a judge’s determination as well.
A judge may also take into account whether the testator considered the influencer to be an authority figure to them. If so, then a judge will seek to determine whether that individual knew of the testator’s vulnerability. They’ll also take into account the methods that they used to exert the undue influence and what type of financial gain they made from doing it.
Elder abuse laws exist to protect those who may have accumulated wealth and are entitled to government benefits from having what’s theirs taken away from them. Undue influence codes are intended to ensure that a testator’s wishes are upheld. A Lafayette undue influence attorney can guide you as you try to prove that your mentally compromised loved one was hoodwinked into signing a will against their wishes.
