Dad died ten years ago. Mom’s been in good health until the last couple of years and living alone in her own home. There are three adult children and several grandchildren. One child, who has two children of their own, lives in the area. The other two children live hundreds of miles away but visit mom at least twice a year. The child closest to mom helps mom with various tasks but mom has always paid her for her efforts and otherwise treats all of the children and grandchildren equally.

Mom started to slip physically and mentally a couple of years ago and for the last year lived in assisted living. Mom dies and the will is read. All of mom’s several hundred thousand dollar estate is left to the daughter who lives in the area.

The two children who have been left out feel that the one child has exercised undue influence over mother and got her to change her original estate plan which left everything equally to the three children. Do those who have been left out have a remedy?

Generally speaking, a person is allowed to leave their estate to any person or any organization that they wish. With the exception of some protection for spouses, there are no other requirements to treat children equally or even fairly. However, if it can be proven that the will was improperly executed or that the deceased was legally incompetent to make a will or that undue influence had been exercised, the will may be set aside.

Here the children left out suspect undue influence. If demonstrated to a judge that undue influence had been exercised on mom, the judge could disallow the will that leaves everything to the one child and admit to probate the old will that left the estate equally to the three children.

Undue influence has four elements: the susceptibility of the person who made the will to being influenced; the favored person’s opportunity to exercise such influence; the favored person’s disposition to exercise undue influence; and the fact that the undue influence obtained the coveted result.

The objectors to the will have the burden of proving the undue influence by clear, satisfactory and convincing evidence. However, if three of the four elements meet that burden of proof then only slight evidence is necessary to prove the fourth element.

The situation is well worth discussing with a lawyer. A review of mom’s medical records and conversations with some of mom’s closest friends, neighbors, and other relatives may reveal evidence that would lead to the conclusion that undue influence had been exercised.

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