WHY WE ASK YOUR SON OR DAUGHTER TO LEAVE THE ROOM WHEN YOU ARE SIGNING YOUR WILL
by David A. (Andy) Hall
Understanding Undue Influence
The sad reality that even with the best prepared estate plan there can be instances where a family member, or some other individual challenges your will after your death. Often times, if you have enough resources to carefully prepare your estate plan, then you have enough resources for descendants to fight over. When a person decides to undertake the process to challenge the validity of a will, they are called a Caveator and the process by which they challenge the will is called a Caveat. These proceedings generally start with the Orphan’s Court for the county where the Decedent (the person who died) was domiciled (where they lived). There are a variety of bases to caveat a will, but one that comes up again and again is undue influence.
The Maryland Court of Appeals identified seven factors to undue influence in Moore v. Smith, 321 Md. 347, 353 (1990):
- The benefactor and beneficiary are involved in a relationship of confidence and trust;
- The will contains a substantial benefit to the beneficiary;
- The beneficiary caused or assisted in the effecting the execution of the will;
- There was an opportunity to exert influence;
- The will contains an unnatural disposition;
- The bequests constitute a change from a former will; and
- The testator was highly susceptible to undue influence.
Factor three, which is the beneficiary caused or assisted in effecting the execution of the will, is the reason that we ask your friend, relative, or caregiver to leave the room when you are signing your Last Will and Testament. We know from experience that if there is a challenge to your will, then Caveator will ask who was present at the signing of the will. They will point to the presence of so and so as to why the will should not be admitted to probate. Why have your family suffer through expensive legal proceedings and potentially derail your carefully chosen estate plans when we can take proactive steps during your planning to prevent these problems many years before they arise?