When a loved one dies and the will contains a surprise, suspicion can arise quickly.
For years, your mother told you, your brother and sister, that her estate would be divided equally among the three of you. But you and your brother were busy with your families and careers. So your calls became less frequent and your visits became more difficult because you live far away. Your sister, who lived locally, became the caregiver and gatekeeper between your mother and the family. Or maybe there is a non-family, employed caregiver.
Your mother dies and, surprise, a recent and new will is found. It unfairly leaves nearly everything to your sister. Or perhaps your mother’s caregiver unexpectedly receives a substantial legacy. Or you discover this new estate plan was signed while your mother was seriously ill or increasingly dependent on your sister or an independent caregiver.
What can you do?
Under Maryland law, a will can be challenged on several grounds, including undue influence, lack of testamentary capacity, fraud, duress, improper execution, or the existence of a newer valid will. A challenge to the validity of a will is generally pursued through a caveat proceeding in the Orphans’ Court.
One of the most fact-intensive grounds for such a challenge is undue influence.
What Is Undue Influence?
Influence is not necessarily undue influence. But an unexpected or seemingly unfair will is not necessarily the product of undue influence.
Adult children routinely give parents advice. Spouses influence one another’s decisions. A close friend or caregiver who is there when children are absent may become particularly important to an older person. And a testator generally remains free to make an estate plan that other family members consider unfair.
The issue becomes different when another person’s influence is so strong that it overcomes the testator’s own free choice. Undue influence is pressure or manipulation sufficiently strong to override the testator’s free will and cause the testator to make a will he or she otherwise would not have made.
Maryland cases therefore require more than evidence that your sister or the caregiver persuaded or influenced the person making the will. As discussed in the Maryland decision in Wall v. Heller, 61 Md. App. 314, 486 A.2d 764 (1985), although the testator suffered from various physical and mental afflictions that included congestive heart failure and senile dementia, the court validated the will because the influence did not destroy the testator’s genuine free agency.
Because every family situation is different, there is no single fact that automatically establishes undue influence. Instead, the surrounding circumstances become critical.
Here are seven warning signs that can warrant close attention. Moore v. Smith, 321 Md. 347, 582 A.2d 1237 (1990).
1. A Relationship of Trust or Dependence
One potential red flag arises when the person primarily benefiting from a new will has assumed an unusually important position in the testator’s life. For example, your sister or a caregiver may begin handling your mother’s finances, transportation, medical appointments, or day-to-day affairs. As an older adult, your mother may become increasingly dependent upon this trusted individual. There is nothing intrinsically improper about such a relationship. In many families, one person, often but not always a daughter, son, or other close family member, quite appropriately or necessarily assumes greater responsibility as your mother declines in health or mind.
But the nature of the relationship can become significant when it is joined with other suspicious circumstances. A close or confidential relationship between the testator and the person alleged to have exercised influence is one of the circumstances considered in Maryland undue-influence cases.
The critical question is not simply whether the benefiting person was close to the testator, but how that relationship relates to the circumstances surrounding the changed estate plan.
2. The Testator Was Particularly Vulnerable
Physical illness, cognitive decline, and increasing dependence can make the circumstances surrounding an estate-plan change especially important. But vulnerability does not automatically mean legal incapacity rising to testamentary incapacity. It just means a person may potentially not retain sufficient testamentary capacity to execute a will and become increasingly susceptible to another person’s influence. Maryland authorities treat undue influence and incompetence as distinct potential grounds for contesting a will.
That distinction can be important in actual litigation.
The question in a capacity case concerns the testator’s legal ability to make the will. An undue-influence claim focuses instead on whether someone else’s pressure or control overcame the testator’s independent decision-making.
Depending on the circumstances, a case can raise issues concerning both.
3. Family Members or Advisers Suddenly Lose Access
Suppose your mother previously communicated regularly with all her children, but becomes increasingly difficult to reach. Your calls are not returned. Visits are discouraged or controlled. Your sister gradually becomes the primary conduit between the parent and everyone else. This walling off does not establish undue influence by itself.
Such isolation can, however, become relevant when viewed alongside any physical or mental vulnerability, dependency, especially if the individual controlling access was also involved in changing the estate plan.
Thus, isolation from family and advisers are circumstances potentially relevant to the analysis.
4. The Beneficiary Was Involved in Obtaining the New Will
Another significant area of inquiry is how the new estate plan came into existence.
Circumstances such as who suggested changing your mother’s estate plan; who arranged for the change by finding the attorney, making the appointment, and providing transportation to the attorney; what role the person played in the preparation of the estate plan and its new terms; and whether the influencer received a large benefit from the new estate plan.
Participation by the alleged influencer in arranging or preparing the new will is among the circumstances identified in Maryland-focused discussion of undue influence. Again, involvement does not automatically invalidate a will. An adult child driving an elderly parent to a lawyer’s office, for example, does not establish undue influence.
But the degree and nature of that involvement may become important when viewed with the other evidence.
5. The New Will Dramatically Changes a Longstanding Estate Plan
Suppose a parent executed wills for many years leaving the estate equally among you, your brother, and sister. Later, a new will mystically appears leaving substantially everything to your sister (or the constant caregiver).
That change may understandably generate suspicion, but there is an important legal distinction:
An unequal will is not necessarily an invalid will or evidence of undue influence. Everyone is permitted to change their estate plans, including deciding that one family member should receive more than another. Nevertheless, an unexpected and major departure from an earlier estate plan is one of the circumstances that may be considered in analyzing an undue-influence claim.
The significance of the change becomes greater or lesser depending upon the surrounding evidence.
A dramatic change alone, coupled with demonstrable independence and an understandable explanation, is very different from such a change in the context of vulnerability, dependence, and significant involvement by the person receiving the increased inheritance as described above.
6. The Person Allegedly Exercising Influence Receives a Large Benefit
Understandably, many people who give assistance to aging relatives also inherit from them, and other family members who would be expected to be beneficiaries of the will may be disinherited. Orwick v. Moldawer, 150 Md. App. 528, 822 A.2d 506 (2003). For example, one child of several siblings may take care of a parent for years and receive a larger inheritance in recognition of that care. A testator may decide that one child needs more financial assistance than another. A longtime caregiver may become genuinely important to the testator.
A substantial benefit therefore does not establish wrongdoing.
But the benefit can matter in conjunction with the larger picture. In Maryland, a substantial benefit to the individual accused of undue influence is one of the circumstances courts may consider.
Again, no one individual circumstance necessarily decides the case. The combination is what can make further investigation important.
7. The Estate Plan Changes Shortly Before Death
Timing is also important. A will signed shortly before death isn’t invalid simply because it was executed late in life. Indeed, some people quite legitimately modify an estate plan after a change in relationships, finances, or family circumstances.
But timing can take on greater significance when other concerns are present.
A very major change shortly before the testator’s death is among the circumstances identified in Maryland analyses of undue influence.
For example, the evidentiary picture may merit closer scrutiny when a major testamentary change occurs during a period of serious illness, substantially benefits a newly influential person, and differs dramatically from longstanding prior plans.
How Is a Will Challenged in Maryland?
A formal challenge to a Maryland will is known as a caveat proceeding. A petition contesting a will is brought in the Orphans’ Court, which handles probate proceedings, by a person who has an interest in the estate. This includes not just someone named as a beneficiary under the will but someone who would inherit under Maryland intestacy law if there were no will.
Dissatisfaction with someone’s estate plan does not, by itself, give everyone the right to challenge it.
What Evidence Is Important?
Undue-influence litigation is intensely factual. Depending on the particular allegations, potentially relevant evidence can include prior wills or estate-planning documents, communications surrounding the disputed change, testimony from people familiar with the testator regarding mental competency and understanding, and evidence concerning the relationship between the testator and beneficiary.
The circumstances surrounding the creation of the challenged document can be particularly significant because Maryland’s analysis considers issues such as susceptibility, opportunity to influence, participation in arranging the new will, changes from earlier planning, benefits received, and the timing of the change.
The practical question is not unfairness. The legal issue is:
“What is the evidence concerning the circumstances in which this will was made?”
Undue Influence and Testamentary Capacity Are Not the Same Thing
Families frequently use these concepts interchangeably, but they present different legal issues.
Testamentary capacity concerns whether the individual had the legal mental capacity required to execute the will. Undue influence concerns whether someone exerted improper influence that overcame the individual’s free choice.
Maryland recognizes both incompetence and undue influence as grounds upon which the validity of a will potentially may be contested.
The factual evidence may overlap, particularly when illness or diminished condition allegedly increased a testator’s susceptibility to influence. But distinguishing the two legal theories is important when evaluating a potential will contest.
The Bottom Line
An unexpected will with a surprising distribution of the decedent’s assets does not necessarily mean that someone exercised undue influence. Parents can treat children differently. People change their minds. Caregivers can receive inheritances. And a will made late in life can still reflect the testator’s genuine intentions.
But certain combinations of circumstances deserve closer examination. Vulnerability, dependence upon a beneficiary, isolation, beneficiary involvement in obtaining the new will, a dramatic departure from earlier plans, a substantial new benefit to someone, and unusual timing can collectively raise serious questions about how an estate plan was created. Maryland authorities emphasize that undue influence cases are highly dependent upon the entire factual situation and the unique individual circumstances rather than any single red flag.
For someone considering a Maryland will caveat, the critical task is therefore not simply determining whether the result feels or even is unfair. It is identifying the legally relevant factual circumstances surrounding the execution of the will and determining what evidence can establish what actually occurred to affect the terms of the will and estate plan.
