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Establishing Undue Influence

One of your parents is still alive, there is no legal challenge you can make to his will – and he may change his will again before he dies. The starting point may be for the wife to speak to her husband to try and assess whether he knew what he was doing when he made this will and whether he did so of his own volition.

If your father dies without changing his will and his wife remains concerned about whether it represents his wishes, you may be able to challenge it by showing that someone exerted ‘undue influence’ or elder abuse on the father when he made the will, or that he lacked the capacity to make it.

However, the test for ‘undue influence’ and financial elder abuse is a difficult one to satisfy. While there may be a very bad smell about the circumstances in which he made the will, this would not be enough to prove that your someone unduly influenced her father.

The fact that the someone arranged for an attorney to see the father would not in itself prove undue influence. In fact, if an attorney was present and acted properly, establishing that your father knew what he was doing and was acting of his own free will (and made file notes to that effect), it may be much more difficult to challenge the will.

If the will remains in place on your father’s death, it would be advisable to obtain a copy of the attorney’s file so that you can establish the circumstances in which he made the will.

Alternatively, if you were able to gather sufficient evidence, you could seek to prove that your father lacked ‘testamentary capacity’ and may have been the subject of elder abuse at the time he made the will.

However, you would need clear evidence that he did not have capacity at the time. This would typically be medical evidence from his doctor. A review of the attorney’s file should also shed light on this matter.

– from Steven Peck, Senior Attorney at Peck Law Group

The Peck Law Group

About the Author

Attorney Adam Peck has been practicing law since 1981. A former successful business owner, Mr. Peck initially focused his legal career on business law. Within the first three years, after some colleagues and friend’s parents endured nursing home neglect and elder abuse, he continued his education to begin practicing elder law and nursing home abuse law.


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