Undue influence is a term often used in will contests to refer to outside pressures which negate the free will of the testator (will maker), so that the maker of the will lacks the necessary mental capacity for a valid will. Undue influence may take the form of isolating the weaker person, promoting dependency, or inducing fear and distrust of others, among other manipulations. Undue influence, like mental capacity, raises the question of whether an individual is acting freely. Duress is usually claimed as a factor in the conclusion that undue influence existed. However, duress is a causative factor, whereas undue influence is a determination that the person lacked the required mental state to legally make a decision due to duress or other factors, and based upon the following elements:
The will contestant must prove:
Typically, courts that make determinations of whether or not undue influence has been exercised. In doing so, they consider a variety of factors, including whether the transaction took place at an appropriate time and in an appropriate setting and whether the older person was pressured into acting quickly or discouraged from seeking advice from others. Courts also consider the relationship between the parties, and the "fairness" of the transaction.
For example, an executor who is a beneficiary or benefits from a will may be found to have exerted undue influence in preparing a will. When the chief beneficiaries are active in procuring the will, isolating the testator from his or her family, or preventing the testator from obtaining independent legal advice, it is a factor to be considered in examining undue influence. A common pattern in cases when undue influence is found is
