Challenges to estate planning documents or other legal documents such as deeds or contracts are often based on the theory of “undue influence.” This concept is perhaps widely misunderstood. For example, there is nothing wrong with an adult child providing assistance to an aging parent, even if it is done with the hope and intention that the parent will provide for that child in a will. This happens all the time. The adult children may want to get on their mother’s “good side” in hopes that, upon her passing, they will take more of the estate than others. The law in New Hampshire will not set aside an estate plan under these types of allegations. Instead, in order to set aside a plan on the basis of undue influence, one must demonstrate that an individual has influenced the testator in a way that takes away the “free will” of that person. A challenger must prove that the wrongdoer has substituted his or her own will for that of the testator such that the document is not truly the expression of the wishes of the testator but rather the wishes of another. Mere persuasion, absent a showing of fraud or deception, will not invalidate a will on the basis of undue influence. One New Hampshire court has described the amount of influence that must be exerted to be “force and coercion that destroys free agency and that it must be more than merely the influence of affection.” It must appear that the will was obtained by coercion. Regardless of the motives of the influencer, mere kindness and/or affection, or a desire to gratify another, will not support a finding of undue influence under New Hampshire law.
A court will consider all of the circumstances surrounding a disposition including the relationship between the parties, the physical and mental condition of the donor, the reasonableness and nature of the disposition and the personalities of the parties when conducting an analysis under an undue influence theory. When reviewing cases of undue influence, a number of considerations are usually present that will support such a claim: (1) an unnatural disposition; (2) made by a person susceptible to undue influence; (3) to the advantage of someone who has an opportunity to exercise the undue influence; and (4) who in fact has used that opportunity to obtain the will through improper means.
A court will consider testimony of lay witnesses and other evidence. The test to prove undue influence is quite rigorous. A finding of incapacity is not required to conclude that a will was the product of undue influence but New Hampshire courts have long recognized that much less influence is required to dominate a weak mind than to control a strong one. Simply put, it may be almost impossible to prove undue influence without some showing that the subject has at least some diminished capacity.
These cases of undue influence are fact dependent and therefore the presentation of evidence in order to persuade the court one way or the other is critically important.
