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What does undue influence mean?

If you are someone who was shocked to find out what bequests and provisions your deceased New Jersey parent’s will contained, you may be wondering how in the world (s)he made such bequests. They do not seem to sync with who (s)he was and how (s)he normally acted. Before you conclude that you did not know your parent at all, consider the possibility that (s)he was under someone else’s undue influence at the time (s)he made the will.

A person must have a sound mind when making a will. What this means in New Jersey is that when your parent executed the will, (s)he had to exhibit all of the following:

  1. General knowledge of the nature and extent of his/her assets
  2. General knowledge of who his/her natural “objects of bounty” were, i.e., children, grandchildren, etc.
  3. Specific knowledge that (s)he was making his/her will
  4. Freedom from delusions or influences that would cause him/her to make unexpected or unusual bequests

Point 4 goes to the heart of undue influence, the situation in which one person is in a position of authority over another person and takes advantage of that power to the point where (s)he usurps the victim’s free will and imposes his/her own will instead.

Opportunities for undue influence

If your parent was ill, frail and/or elderly prior to death, requiring the services of a daily caregiver, this is the classic undue influence example. The more dependent your parent became on the caregiver, the stronger that person’s influence became. If your parent had considerable assets and this caregiver knew about them, which in all likelihood was true, it is not at all inconceivable that (s)he decided to make sure your parent left him/her a sizable bequest. Unfortunately, second spouses often also exert undue influence over a testator to the advantage of themselves and their own children and the possible exclusion of the testator’s children by a previous marriage.

Undue influence red flags

If you suspect that someone unduly influenced your parent to make the will that shocked you, look for red flags including the following:

  • Did this person isolate your parent from you and other family members?
  • Did (s)he discourage you and other family members from visiting your parent?
  • Did (s)he attempt to stay in the room and steer the conversation whenever you and other family members managed to visit your parent?
  • Did (s)he “help” your parent pay bills and manage his/her finances?
  • Did (s)he administer your parent’s medications?
  • Did your parent’s usual attorney draft the will or did a new attorney draft it?

If these or other red flags lead you to conclude that your parent may well have been under someone’s undue influence at the time (s)he made his/her will, you may need to consider whether or not to challenge your parent’s will.

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Thomas N. Torzewski, LLC

Torzewski & McInerney, LLC
60 Washington St
Suite 104
Morristown, NJ 07960

Phone: 973-532-2868
Fax: 973-359-0077
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