Undue influence in the procurement of a will regularly plays a role in legal television dramas and celebrity gossip magazines. Shows like ABC’s Scandal can easily draw up the classic story line involving an older, wealthy individual who strikes up an unlikely relationship with a younger, more vibrant new companion, leaving their family shocked at the potential of the elder person being taken advantage of and, ultimately, changing their will to provide nothing for their family. In the real world, undue influence often occurs in less conspicuous relationships, like one between a daily caregiver and a patient, and may be difficult to prove.

Undue influence exists where a fraudulent influence over the mind and will of another occurs which leads to a will that is not freely executed but rather procured as a result of the influencer. Proving undue influence in the procurement of a will is done so by direct or circumstantial evidence. Direct evidence tends to be a rarity. Most will contestants instead prove the existence of suspicious circumstances to lead a court to determine that the will was not procured by the testator’s free and independent actions. In certain situations, proving the existence of a confidential relationship between an individual and the testator may even result in presumption of undue influence.

Examples of a confidential relationship include: trustee-beneficiary, attorney-in-fact/power of attorney-principal, attorney-client, or even a health care worker-patient. These common relationships, in certain situations can give rise to a presumption of undue influence that is so strong that it can only be overcome by demonstrating adequate evidence of fairness. Proving a confidential relationship exists, however, is often only the first hurdle.

While a benefit may be readily apparent under the terms of a last will, the circumstances by which the will was procured also must give rise to the suspicion of undue influence—a view which may be difficult to impress upon a court if certain evidence is unavailable. Suspicious circumstances can vary. A will contestant may bring up the presence of fraud or of duress. Fraud in the inducement or execution of a will occurs when an individual is deceived by a misrepresentation leading them to take an action, such as making a bequest they otherwise would not have. Duress occurs when a testator is coerced into making a will by a threat of actual performance of a wrongful act.

To recap our series on contesting a will, to initiate a will contest in Tennessee you must first establish standing by showing you qualify as a potential beneficiary of the decedent estate. If standing exists there are three potential options for contesting a will: 1) defective instrument; 2) incompetence; and 3) undue influence.

Finally, it is important to note that in the event of a successful will contest in Tennessee the results may still be less than desirable. If no valid prior will exists, then the decedent’s remaining probate assets will likely pass under Tennessee intestacy law.

Each estate is different and the legal advice required to protect your beneficiary rights can vary widely depending on an array of factors. To help ensure your beneficial rights are protected to the full extent of the law, you should consult with a probate attorney experienced in probate and trust litigation.