What Is Undue Influence in Illinois? Part 1

 Posted on June 09, 2021 in Estate Planning

Undue influence is the most common justification in Illinois when someone wants to contest the validity of a will. But what is undue influence? And if you suspect someone is trying to wield undue influence over your loved one during the creation of their will, what can you do about it? We will explore the concept of undue influence in a short series of blog posts, explaining what undue influence is and how it is treated under Illinois law.

Undue influence is when the person for whom the will is written (the testator) has their wishes wrongfully manipulated and overpowered by someone else. This obscures the true wishes of the testator and can cause tension and conflict in executing the will after the testator is deceased.

Family members who are concerned their loved one is being subject to undue influence may have worries triggered by unusual behavior, such as sudden estrangement or confusion on the part of the testator. They may witness a decline in the mental capacity of the testator, or notice they are accompanied by a companion who seems overly zealous in “helping” the testator or seems to be influencing their decision making.

Proving Undue Influence in Probate Court

In order for undue influence to be considered by a probate court as potentially invalidating a will, the undue influence must have occurred at the time when the will was being written. It must also have changed the ability of the testator to make their own decisions freely.

This can get complicated when the testator is not of sound mind. It is much harder to prove a case of undue influence when the testator may have struggled to know or articulate their wishes due to mental degeneration.

In Illinois, proving undue influence has occurred can be done in two ways. We will discuss the first in this post and the second in the next post.

Actions Constituting Undue Influence

The first way to prove undue influence is by showing that specific actions occurred at the level of undue influence. If behaviors that constitute undue influence occurred – such as the testator being taken advantage of by someone who sought to benefit from the will – the will may be proven invalid.

Someone seeking to prove this might point out that the will nonsensically give property or other inheritance to certain close family members and not others, without any clear explanation. They may also argue that the testator was dependent on the person helping them create the will who may have exerted undue influence.

Some influence is fine; everybody has their opinions about family members, and many people freely make their opinions known. But does it reach the level of undue influence? A probate court will decide, but generally, they will look for factors such as radical changes in a will, deliberate efforts to estrange the testator from family members, or mental illness or degeneration that would make a testator vulnerable.

In the next post, we will examine the second possible cause courts will look for in undue influence: That of fiduciary duty.

Get Help From a DuPage County Probate Attorney

If you believe that your loved one is, or may have been, the victim of undue influence, you do not have to navigate your situation alone. The experienced Lombard estate planning attorneys at A. Traub & Associates can help you understand your options under the law. Contact us today at 630-426-0196 for a confidential consultation.

Source:

https://www.dcba.org/mpage/vol100498art5