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How To Claim Undue Influence in Estate Planning
When a person uses excessive persuasion to get another person to draft their estate plan, it's called due influence.Due influence is so powerful that it can substitute the will of the other person.You should file necessary paperwork in court if you want to challenge an estate plan.You only have three months to file your challenge in some states.
Step 1: Don't delay.
If you want to challenge an estate plan, you need to act fast.Usually the deadline is very short.You can't bring the suit if you miss the deadline.You only get three months to raise a challenge to a will in Florida if you receive notification that the will has been submitted.You should not wait for the will to be admitted to the court before contacting an attorney.An extension of time to perform the necessary investigation is something your attorney can help you with.
Step 2: Meet with an attorney.
Whether or not you have a valid undue influence challenge to an estate plan can be helped by a qualified attorney.He or she can look at a copy of the will or trust.The attorney can tell you what to look for.You can get a referral from your state or local bar association.Call to schedule a consultation.You should consider hiring an attorney to represent you.It will be difficult for you to learn all of the rules on your own when challenging an estate plan.A lawyer will bring the lawsuit for you.
Step 3: How do you prove influence?
There is no definition of undue influence.You need to prove that the estate plan doesn't represent the deceased's intent but instead represents the intent of the person.There was an unusual gift made in the estate plan.The person was vulnerable to another's influence.The person had power over the dead person.The person took advantage of the opportunity.
Step 4: Trust or read the will.
Look to see if any of the bequests are normal.This is usually the first sign that something has been done.A large portion of the estate could have been given to a non- family member.If you don't have a copy of the will, you can go to the court.The will should have been sent to the court.It might be more difficult to get a copy of the trust.Trust documents are not public records.You may have to ask around.If you know who has been given most of the estate's property, ask them.
Step 5: Talk to people who were close to the deceased.
Talking to people who were close to the deceased is part of your evidence-gathering.You should try to find evidence that the deceased was particularly vulnerable.If the deceased was isolated from friends or family, ask them about it.The person isolating the deceased might have been trying to influence them.The deceased may have been mentally and physically frail.People are vulnerable to being influenced.If the deceased was dependent on one person for their care, and if that person received a large benefit under the estate plan.The person who influenced the deceased may have used intimidation, threats, or other coercive means.This type of behavior can be considered undue influence.
Step 6: Do you know if a fiduciary received a benefit?
If a person received a large benefit, they can be accused of having "undue influence." This is a legal term meaning that the person had complete trust and confidence in whoever made the will or trust.If the person trusted them completely, non- professionals may also qualify as a fiduciary.There is a presumption of influence when the fiduciary helped to create or obtain the will and also received a substantial benefit under it.The fiduciary will have to show evidence that he or she did not exert too much influence to be rebutted.
Step 7: Find out if there is a no-contest clause.
If the will or trust has a no-contest clause, you could be endangering your inheritance by bringing an undue influence claim.Discuss this issue with your lawyer.Any beneficiary who challenges the will or trust will lose their inheritance.If you have a reasonable belief that the estate plan was the result of undue influence, some states will provide a safe haven.If you have a reasonable belief that undue influence was present, you will be able to keep your inheritance even if you lose your lawsuit.If you did not leave anything in the estate plan, you don't have to worry about bringing a legal challenge.
Step 8: Check to see if you can file a lawsuit.
No one can bring a lawsuit against an estate plan.Your state law limits who can challenge a will.You can only file a lawsuit if you are an heir, such as a child of the deceased.Under the current will, you are a beneficiary.You want to challenge the current one because you were a beneficiary under a previous will.
Step 9: A complaint or petition can be drafted.
You can make a claim of undue influence by filing a complaint with the court.If your court has printed blank complaint/petition forms, you can use them.If you challenge a will, you will usually file a petition with the court.You state why you are challenging the will in this document.You don't need to go into much detail about why you think there was undue influence in this document.You are asking the court to declare the will invalid.You will usually file a complaint with the court if you are challenging a trust.In the complaint, you explain the circumstances of the dispute and ask the court to stop the distribution of trust assets.
Step 10: The document should be assembled.
If you need to attach a copy of your will or trust to your complaint, check your court rules.You can get a copy of the rules from the court clerk.Make several copies of the document.You should always keep one copy of your records.
Step 11: The complaint should be filed.
You should take your completed document to the appropriate court and be prepared to pay a filing fee, which will vary depending on the court.You should file your will contest in the probate court if you are challenging a will.The will has been submitted to the court.You should file the trust contest in civil court.It depends on how the court system has been set up.Your lawyer needs to know where to file.
Step 12: Inform other parties.
You need to let people know that you are challenging the will or trust.Depending on the court, notice can be provided in different ways.In some courts, the clerk will issue a citation which will be sent to all heirs and published in a newspaper.You are responsible for mailing a copy of the citation to interested parties in other courts.You have to complete a proof of service form before you can file it with the court.
Step 13: You can file an affidavit of objections.
After filing a complaint or petition, you may have to file an Affidavit of Objections.You have to file this document 30 days before the hearing.The specific facts and grounds on which you are objecting to the will must be stated in your affidavit.Information on how to format affidavits can be found in Write an Affidavit.
Step 14: You can read the other side's response.
The trustees may file a response to the court.An interested party, such as a beneficiary named in the estate plan, will oppose your attempt to invalidate the will.This response could be called an answer or a motion to dismiss.The trustees might deny all of your allegations.If you waited too long to file a lawsuit or if you don't have standing to do so, the case could be dismissed.
Step 15: The deceased's attorney should be deposed.
One technique you can use is to ask witnesses to sit for a deposition, in which you ask questions and they answer them under oath.The attorney who drafted the will or trust will have important information that can prove influence.Who contacted the attorney to draft the will?Were there any beneficiaries at the execution?Was the lawyer alone with the client?Were there other people in the room?Were there any people in the room?Did anyone give instructions about what should be in the estate plan?The beneficiary might have recommended witnesses for the execution.
Step 16: Copies of relevant records are available.
There are many different kinds of records you should get in discovery in order to support your claim of undue influence.You might have to issue a subpoena to get these documents.For example, look for the following: medical records for at least 10 years prior to the deceased's death, long-term care records, nursing home records and social work records.
Step 17: The dispute should be settled.
Defending against the lawsuit could eat up most of the estate's assets.The other beneficiaries may want to settle in order to preserve the estate.Settlement offers should be seriously considered.Unless the amount you are negotiating is very low, you would benefit from having a lawyer represent you.Tell me how much you want.In a settlement, you are unlikely to get everything you want.Settlement negotiations involve giving and taking, and the other side giving up a little bit.
Step 18: You need to organize your evidence.
Settlement could fail or you might not be interested in it.Prepare for trial in this situation.If you want to prove undue influence, you should look at all the documents and deposition testimony.You might think that an at- home nurse influenced your mother.You may be able to show that the nurse took the lead on changing your mother's will because of her frail physical health and advanced age.The lawyer who helped draft the will can be called to testify.You might think that your father was influenced by a sibling.Friends and relatives can testify that your sibling kept your father away.They could testify that your sibling yelled at your father.Evidence can be presented that your sibling had financial power of attorney and the will was changed quickly.
Step 19: You can create exhibits.
It is possible to introduce helpful documents into evidence.The will or trust will be introduced into evidence.An exhibit sticker can be attached to the document to create an exhibit.The other side will need a copy of your exhibits.The judge should give deadlines for you to meet.
Step 20: Provide witnesses with subpoenas.
A subpoena is a legal request to show up at court to give evidence.You need to serve your witnesses subpoenas.Give them enough time to prepare.Don't put it on them the day before trial.You can get blank subpoena forms from your court clerk.
Step 21: There is evidence at a trial.
Witness testimony and exhibits will be used to show the judge or jury that the deceased's will was influenced by another.Everything should be handled by a lawyer at the trial.If you have helpful information, you may have to testify.You should always tell the truth and listen to the lawyer.Don't guess if you do not know the answer to a question.Ask for clarification or state that you don't know.