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What is undue influence?

We make a will to ensure that our assets and sentimental items go to the people who we want to have them. But what happens when we are no longer able to make clear decisions? What happens if someone else enters the picture and convinces us to change our will and leave everything, or most everything, to him or her? 

Unfortunately this type of manipulation does happen, and more often than we would like to think. The person who takes unfair advantage of a vulnerable adult has a mission: To maximize how much money or assets he or she can extract from the victim. 

Undue influence definition

Undue influence is basically when a person takes unfair advantage of the person who made the will to gain an inheritance. Many times a caregiver, housekeeper, neighbor, friend or even family member knows that the person who made the will (called the testator) is vulnerable and suggestible. In fact, the (typically elderly) testator may also be dependent on the caregiver for basic care services and meals. The person who exerts "undue influence" then coerces the testator to change this or her will in an attempt to get large amounts of money or property. It is called "undue" because this change is not something that the maker of will would normally do, but has been manipulated or coerced to do. 

What constitutes "undue"?

Undue influence is not a simple suggestion or request. For example, if a grandchild asks a grandparent to leave her money in the will once or twice this is not undue influence. If an adult child asks to have the family car when the parent dies, this also is not undue influence. It takes more than a request or suggestion. 

Typically the person who exerts undue influence has the ability to spend a lot of time alone with the testator. This is why the  undue influencer is usually a caregiver, close friend or family member. After isolating he testator from the rest of the family the influencer convinces the testator to have a new will made . The new will leaves the majority or all of the assets to the influence. Most often the undue influencer will contact a new attorney to draw up the new will.

Steps to take if you suspect undue influence

If your loved one is still alive and his or her will changed dramatically recently and you believe it is the result of undue influence your best course of action is to contact an attorney who works in probate and estate planning. If the change is noticed after your loved one has died you may have to file a lawsuit to contest  the new will. Act fast as there are strict time limits to filing a will contest in New Mexico. 

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