Undue Influence and the “Trust Factor”: How to Assert and Defend Against a Claim of Undue Influence (Part 1 of a 4 part series)

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Probate and Trust Litigation Attorney

Have you ever trusted someone else to protect you, or keep you from making a big mistake? Trust is often an emotional decision which when given by an aging person or someone with diminished mental health, can result in the exercise of undue influence by a person over another. Trusting someone implies a close and confidential relationship. In a general sense, a confidential relationship “exists when the circumstances make it reasonably certain that two (2) people do not deal on equal terms, rather on the one side a person has significant, even overwhelming influence, or domination and/or on the other side, weakness, dependence or vulnerability, by the other.”

The existence of a fiduciary relationship” (i.e. Power of Attorney, guardian in guardianship, joint account holder) can also be a basis for determining if a confidential relationship exists. For some individuals (depending on their physical and mental condition), a mere request to do something or refrain from doing something may amount to the establishment of a confidential relationship.

A common situation where a confidential relationship comes up is when the maker of a last will (called the testator) is weakened as a result of an illness, disease or condition, which makes this person weakened, and dependent on others to help him or her to function.

In one reported case a person before death had been hospitalized and faced a complex medical procedure, making her depend on her children. Being elderly or aged alone is insufficient to prove a confidential relationship, but if that elderly and aged person is dependent mentally or physically on another to help him or her out, it leaves him or her in a vulnerable position. That’s when a court will find a confidential relationship to exist if later on it is found out that this person changed their will, trust or estate planning to favor that person.

To discuss your NJ Estate Probate and Trust Litigation matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.