Warning signs of undue influence

The most common reason for contesting a will is an allegation of undue influence – that is, that someone close to the person creating a will (called the “testator”) gained a substantial benefit by persuading the testator to favor that person, at a time when the testator suffered from a weakened intellect.

When an estate planning attorney meets a new client for the first time, it’s important to watch for warning signs of undue influence. After all, we all want to create valid estate plans that will stand up to scrutiny, not buy our clients a lawsuit.

Here is the advice I give other attorneys about the common warning signs that may indicate the possibility of undue influence.

Warning signs

The first warning sign happens when besides the testator calls to arrange the appointment, or brings the testator to the appointment, or both. The elderly and disabled often rely upon others to make appointments and provide transportation, so this occurrence alone does not necessarily spell trouble, but it could be a sign that making changes to the estate plan was not the testator’s idea.

A much more troublesome sign happens when someone speaks for the testator. For example, you ask Mrs. Jones what brings her in today and her companion says, “She wants to change her will.” Or Mrs. Jones may, when asked a question, turn her companion as if looking for the answer, at which point the companion answers your question. If either of these occurs, you will need to meet with the testator alone.

Another obvious warning sign occurs when you learn that the purpose of the meeting is to make changes to a distribution scheme that favors some beneficiary or beneficiaries at the expense of others. Again, the testator may have a sound reason for doing so and have the reasoned judgment to make that change, but it could indicate someone has influenced the testator.

Sometimes you learn in the course of your interview that the testator has received a diagnosis that potentially affects cognition, such as dementia, brain tumor, or a similar condition. Such a diagnosis alone does not preclude valid estate planning, but such a diagnosis is almost surely noted in the testator’s medical records, and could provide a basis for someone to make a contest.

Take appropriate action

Meeting with the testator alone when doing estate planning is a good practice, and vital when these warning signs appear. Excuse any companions to the lobby or waiting room.

Reassure the testator that this is your standard practice, that everything said in the meeting is confidential, and that you want to make sure that you understand his or her wishes, free from the influence of anyone else. Explore the reasons for making the desired changes at this time and note them for your file.

Ask pertinent questions to make sure the testator has capacity. If you believe the testator lacks capacity, is being coerced, or is under undue influence, do not proceed to write a will. If you can’t determine capacity with certainty, consider getting the written opinion of a doctor or psychologist. If you find the testator has capacity, and is under no coercion or undue influence, make thorough notes in your file to support your conclusion.

If you take the proper measures, the estate plans you write will be much more likely to withstand any future scrutiny.

Time limits for contesting a will or revocable trust

When someone calls my office wanting to contest a will or revocable trust, one of the first questions is whether we still have time to contest it. No use going through all the details of possible forgery or undue influence if we’re two years past the time limit.

Below are the time limits applicable in Pennsylvania.

Will Contest

If someone dies leaving a will, a probate estate may be opened by submitting the will to the register of wills in the county of death. The register opens the estate by issuing “letters of administration.”

Anyone wishing to contest the will usually has one year from the time letters are issued to file an appeal. However, it’s also important to know that the court has authority to limit the appeal time to as short as three months!

Courts have allowed exceptions to the time limit in certain circumstances, including fraud, forgery, and the failure of the will’s executor to notify an interested party about the estate.

(A will may also be contested by filing a “caveat” with the register of wills, but that is done before the will is submitted in the first place by someone who hopes to prevent the register from recognizing the validity of the will.)

Revocable Trust Contest

These days, more and more people use a revocable trust (sometimes called a “living trust”) as a will substitute, mainly to avoid probate. Pennsylvania law now provides a time limit for contesting revocable trusts.

To understand the time limit, you first need to know that Pennsylvania law requires the trustee of a revocable trust to send out notices upon the death of the person who established the trust. Notice must be sent to certain people, such as the deceased’s spouse and children, letting them know some basic information about the trust. The trustee must send that notice within 30 days of learning about the death.

A person wishing to contest the validity of the revocable trust then has “one year after the date on which the trustee gave the notice” to file a petition in court. Keep in mind, though, that the law also allows the court to shorten that time limit to six months.

Act promptly

Whether it’s a will or revocable trust, it’s crucial to take action as soon as possible to preserve the right to contest.