Stories abound regarding the “unfair” treatment of beneficiaries under a loved one’s will or trust. The reason someone received favored treatment is often identified as “undue influence.” The complaint generally sounds like, “but for his/her influence, I would have received a better inheritance.” However, we all know beneficiaries do not have to be treated equally. In light of this, you might be asking, what is “undue influence” and when does it concern me?

Undue influence occurs when someone exerts pressure on an individual, causing that individual to act contrary to his or her wishes and to the benefit of the influencer or the influencer’s friends. The pressure can take the form of deception, harassment, threats, or isolation. Often the influencer separates the individual from their loved ones in order to coerce. The elderly and infirm are often more susceptible to undue influence.

To prove a loved one was subject to undue influence in drafting an estate plan, you have to show that the loved one disposed of his or her property in a way that was unexpected under the circumstances, that he or she is susceptible to undue influence (because of illness, age, frailty, or a special relationship with the influencer), and that the person who exerted the influence had the opportunity to do so. Generally, the burden of proving undue influence is on the person asserting undue influence. If the alleged influencer had a fiduciary relationship with your loved one, however, the burden may be on the influencer to prove that there was no undue influence.

In 2011 Nevada strengthened its undue influence laws by creating a presumption invalidating certain bequests by will or trust. Under NRS 155.097(2) a transfer is presumed to be void if made to a person who: (a) drafted the will or trust; (b) is the caregiver to a dependent adult; (c) made arrangements for or paid for the will or trust to be drafted; or (d) is related to, affiliated with, or subordinated to someone described in (a), (b) or (c). Rebutting this presumption requires clear and convincing evidence that the transfer was not the result of fraud, duress, or undue influence.

Of course, there are exceptions to the undue influence rule. The primary exception is for transfers to a spouse. Another exception applies if a beneficiary inherits less than that beneficiary would receive through intestate succession (as if the person died without a will), including probate and non-probate assets, then the presumption will not apply. Lastly, obtaining a Certificate of Independent Review from an attorney will overcome the presumption.

Thoughtful planning and a good relationship with your attorney can help you protect yourself and your assets during life. It also helps ensure your estate is eventually distributed according to your wishes—free from the undue influence of a wrong-doer. At Kling Law Offices, we offer complimentary consultations regarding these matters so you can have the peace of mind you deserve. Call us today for your appointment.