Legal Blog

Undue Influence – Presumed Elder Abuse

Undue influence is a form of elder abuse. Undue influence is so societally distasteful that, in particular circumstances, one accused of undue influence is legally presumed to have done it. In such situations, the accused shoulders the legal burden of rebutting the presumption with evidence that they didn’t do it rather than the other way around. Undue influence theories are how loved ones perceive themselves to have been aggrieved, i.e., those receiving less than they had come to expect, try to make sense of unanticipated and seemingly inexplicable changes in a loved one’s estate planning—changes frequently following signs of dementia and often shortly before death.

Mom couldn’t possibly have decided to make such a change of her own free will; Sister Suzie convinces herself. Mom couldn’t possibly have fully understood what she was doing, Brother Bobby adds with certainty. She would never have abandoned the Will and estate plan she had put in place so many years ago and told us all about it, they both agreed. Pat (or Suzie or insert sibling’s name here) must have pressured or played mind games on Mom to turn her against us, their only conceivable conclusion.


Will challenges, or “caveats” as they are known in many jurisdictions, are frequently contemplated when an estate plan is materially changed in reasonable proximity to one’s death. Most commonly, such a challenge is founded upon allegations of “undue influence” against the family member who benefits from the change.

To be clear, one may most assuredly change one’s estate plan (all day, every day, and twice on Sunday) whenever one chooses to do so. Regardless of how perfect or longstanding our estate plan is, we all have the right to change our mind before we die. That is to say, so long as we have sufficient capacity to appreciate who we are (i.e., “sound mind”), what stuff we own (our “bounty”), and to whom we want our stuff to go when we die (i.e., the “objects of our bounty”), we are deemed to have the legal wherewithal to make or change our Will. In other words, the threshold to establish sufficient legal capacity to make a Will is exceedingly low – less, in fact, than the competency needed to enter into a simple contract… but I digress.

It doesn’t matter if our reason for changing our estate plan is good or bad, logical or thoroughly unreasonable. We don’t have to have any reason at all! Unfortunately, however, trying to make sense after the fact of an unexpected, unlikely, and/or seemingly irrational changed estate plan generally conjures up conspiracy theories and intra-familial feuds, leaving the beneficiary of any such unanticipated testamentary largesse to disprove a legal presumption that they financially abused an elder. Just because one can change an estate plan doesn’t mean one should do so – at least not without taking added precautions to protect the new object of one’s bounty.

You see, unlike accused criminals who are presumed innocent until proven guilty, surviving family members who benefit from surprise changes to an elder’s estate plan (inconsistent with previously stated testamentary intentions) after having assumed a position of confidence and/or involvement in care decisions and day-to-day activities are, generally speaking, legally presumed to have taken advantage of that confidential relationship to enrich themselves inappropriately. At times, despite having given up their careers, spent countless uncompensated hours caring for their aging parent, and given of themselves in ways unimaginable by siblings living halfway across the country who, consequently, couldn’t possibly understand or appreciate the sacrifices or the bonds developed, these same individuals are rewarded by their grateful parent with the legal burden of having to prove they did nothing wrong.

When a dying parent opts to tip the inheritance scales in favor of the devoted child who stood by their side in their waning months and years, such selflessness frequently earns them an unforgiving jealousy by siblings incapable of accepting that their recently deceased parent might have wanted, of their own free will, to reciprocate, or in some manner compensate, whether out of gratitude, love, or moral obligation, the child who sacrificed so much to be with them in the end. Cynical siblings frequently turn a blind eye to the sacrifices, choosing instead to question every action and decision relating to a late-changed estate plan, choosing to rely instead on a presumptive intransigence that could only have been overcome by an unduly manipulative influence.

Of course, we cannot overlook the fact that sometimes motives actually are impure. Sometimes elders, are unduly influenced and, consequently, taken advantage of by misguided children (or second spouses, caregivers, friends, neighbors, etc.). In such situations, we are fortunate to have in place the legal protections we do, including legal presumptions burdening the wrongdoers with producing sufficient evidence to overcome the starting proposition that they took improper advantage of their situation to the detriment of both the deceased loved one, whose estate plans were arguably thwarted, and those others who otherwise stood to inherit their intended share of the decedent’s estate. The unfortunate catch is that the legal presumption of undue influence burdens equally at the outset the worst of the wrongdoers and those whose only “fault” was to be disparately recognized and rewarded by a dying parent. Fortunately, at least, the presumption of impropriety is rebuttable! In other words, with sufficient evidence that the changed estate plan was not the product of undue influence, the scales of justice shift back upon the one challenging the outcome to prove ultimately that the new plan was not the product of the decedent’s free will. How does that happen? Seems like that might be a decent subject for another day!


As a Principal with Offit Kurman’s Commercial Litigation Group, Mr. Repczynski is an Estate and Trust litigator and business litigation lawyer emphasizing will/trust disputes, creditors’ rights enforcement, and B2B business disputes. Over the past 30+ years, Tom has co-owned and operated an exterior painting business and a used furniture business; clerked in the Starr OIC and interned at both Main Justice and the Court of Federal Claims; chaired two local Bar association Boards, two community architectural review boards (VA and NC), and the Committee of Boy Scout Troop 688. Tom is the immediate past Chairman of the Boards of both the Metropolitan School of the Arts in Alexandria, VA, and the South Fairfax Chamber of Commerce, in Lorton, VA. When time allows, Tom also announces local high school football games and umpires for his local Little League.