Making Claims or Defending Against Claims of Undue Influence and Lack of Capacity Before & After Death

Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Will Contest Probate Litigation Attorney

A Suspicious Will or Trust Often Means It’s a Problem:

Protect Your Interests Before the Assets Vanish!

The fact that a person leaves a will or trust does not guarantee that estate property will be distributed according to the expressed terms in the will.  Frequently, heirs will object to even the best made wills and trusts.  New Jersey law gives them that right… the right to object. There are many types of disputes that can arise.  If fraud, duress, or undue influence claims are alleged, a court will often provide an opportunity to allow family members, heirs and beneficiaries to object to the will or trust, and a challenge may be brought by anyone who feels the will is inaccurate or invalid in some way.

If a will is contested and invalidated and if there is a valid prior will or trust, the court will go back to the earlier document and distribute the decedent’s assets in the manner it provides. If there is no valid prior will or trust, then the decedent’s estate will pass through probate as if he or she died without a will at all, known as dying “intestate”, or dying without a will.

Be advised that many wills and trusts have “no contest” clauses that are designed to discourage will contests. This means that if you are a “no contest” heir and you contest the validity of a will and you lose, then you may be disinherited by operation of the no-contest clause.  But these clauses are not always upheld.

UNDERSTANDING THE GROUNDS TO CHALLENGING A WILL OR TRUST:  THE BASICS

Have you been accused of taking money from an elderly person or influencing them to give you money prior to their death or while they are still alive? Are you accusing someone of doing that I described in the proceeding sentence?

Incapacity and undue influence are the most frequent allegations made in any fraud, conversion, will contest, trust dispute and allegation of financial exploitation involving the gifting of money made by a living or deceased person.

If the person was/is elderly, then claims of elder abuse or elder financial exploitation are often made because of alleged mental incapacity or undue influence.  These types of accusations are serious and can subject the accused person to significant criminal and/or civil penalties, damage to his/her reputation, and legal damage claims by the victim and/or their family. To learn more about Elder financial abuse and exploitation visit my website dedicated to this subject. It’s written with you in mind, in simple and easy to understand English. (CLICK HERE)

What is Undue Influence and How Does it Apply to Defending Against Claims That a Gift, Trust or Will Was Made With Lack of Capacity or Under Undue Influence, Conversions or Fraud 

UNDUE INFLUENCE IN NEW JERSEY IS COMPRISED OF THREE ELEMENTS.

THEY ARE AS FOLLOWS:

  • The exertion of influence over another that is undue and significant (i.e., a mere allegation that certain decisions were not rationally made is not enough).
  • The influence must overpower the elderly person’s free will and compromise his or her thinking at the time the will/trust/power of attorney was signed or a gift was made.
  • That influence caused the elderly person to execute a will, trust or power of attorney or make a gift that he or she would not have made but for the undue influence.

New Jersey case law describes undue influence as either, mental, moral or physical coercion that causes the testator/donor or grantor do something that is contrary to what the testator/donor or grantor would have normally done.

Often, it is alleged that as a consequence of undue influence, the will, trust or gift reflects the wishes and desires of the influencer (dominant person) not the testator/donor.  These kinds of claims are tough to defend against.

THE TOUGH PART:  PROVING UNDUE INFLUENCE

When addressing a claim of undue influence, a plaintiff has to obtain information regarding the beneficiary(s) (the person receiving the gift).  The evidence must clearly show motive or the opportunity for the beneficiary(s) to have attempted to exert undue influence over the elderly person at the time the will, trust or power of attorney was executed or over the donor at the time the gift was executed.  This is tough to prove and gives the accused an opening.

Not all influences are “undue” influences. However, and this is an important point to be made and understood!  To be “undue”, the influence must be such that it destroys or substantially compromises the elderly person’s free will to do as he or she pleases with his or her property and the disposition of his or her property.  Each case is governed by the particular facts and circumstances surrounding the execution of the will, trust, or the making of the gift and the actions taken by the parties who took part in the gifting to determine if coercion or undue influence was exhibited.  The mere making of a gift or transfer of $$$ is not enough.

People use the term “lifetime gifts” differently and claims made against you for receiving something of value because the donor lacked capacity requires a legal as well as medical analysis.  If you would like advice on this subject, contact Fredrick P. Niemann, Esq. at (855) 376-5291 or email him at fniemann@hnlawfirm.com to discuss your case.  You’ll find him easy to talk to and confide in.  All consultations are attorney-client protected.

Defending a Gift Made To You or Another Person Against Claims That the Gift Was Made When the Elderly Person Lacked Capacity or Was Under Undue Influence and/or Fraud


In New Jersey, a valid gift, whether made when the elderly person was/is alive or made under a will or trust generally has four elements.  Those elements are:

  • The elderly person took action, whether actual or symbolic, and gave delivery of something of value to another.
  • There was/is an intention by the elderly person to give a gift to another.
  • There was/is an acceptance of the gift by the receiver of the gift.
  • The elderly person knowingly gave up legal ownership, physical possession and control over the subject matter of the gift to another.

If it is believed that the elderly person did not have donative capacity, a defense strategy that can be alleged includes the use of a comprehensive general durable power of attorney which provides the agent with the explicit power to make a gift(s).  This financial power of attorney will allow the agent to make gifts that the person may no longer be able to legally make or affect on his or her own.

New Jersey courts have permitted guardians and Power of Attorneys to make gifts and engage in estate planning with a well written power of attorney or certificate of guardianship.  To learn more about the use of powers of attorney to make gifts or undertake crisis asset planning go to: www.powerofattorneylawyerinnj.com

Burden of Proof When Defending Claims That a Gift(s), Trust and/or Will is Invalid Because of Lack of Capacity, Undue Influence and Similar Grounds

The law presumes that an elderly person like any other person is/was competent while alive, or at the time of death.  Whoever challenges that capacity has the burden of producing evidence to rebut that presumption.  This means the accuser must first establish a case of incapacity with credible evidence.

Undue Influence and Will Contests

Generally, the burden of proving undue influence lies with the contestant or with the person challenging the gift under the will, unless the beneficiary was in a confidential relationship with the deceased and there are suspicious circumstances surrounding the relationship.

A confidential relationship includes not only situations involving a legal or fiduciary relationship, such as guardian, power of attorney, conservatorship, principal and agent and trustee, but also in all  cases where a relationship of trust and confidence actually exist.

In the case of gifts, once the confidential relationship and suspicious circumstances are proven, the burden shifts to the accused who must then prove by “clear and convincing” evidence that there was no undue influence.  Here again there are often legitimate reasons why an elderly person would want to make a gift (large or small) to you or others.  Just because you are or were in a confidential relationship does not legally negate the validity of the gift.

Defending Against Claims of Undue Influence or Gifts on Conversion of Funds Made While Alive   


Someone has accused you of taking money from an elderly or incapacitated person.

What do you do?  First read this background information:

Lifetime Gifts (a legal term for gifts made while a person is alive) are viewed “suspiciously “.  As one Judge stated, “a person is not likely to give away inter vivos what he can still enjoy.”

A showing of a confidential relationship and/or proof that the beneficiary dominated the testator will satisfy  the initial burden.  If that burden is met then; the burden of proving a legitimate gift/transfer is on the party who asserts that defense.  An accused must produce “clear and convincing” evidence that there was no undue influence, and also that the transfer was well understood by both parties.

If a donor (person who makes a gift) is dependent upon another person for help and assistance and makes a “gift” of most of his or her assets, a presumption arises that the donor did not understand the consequences of his or her act or was subject to undue influence.

For Example:  When the donee is the dominant person in the relationship, the burden is upon him or her to show by clear and convincing proof the gift was the voluntary and intelligent decision of the donor.

As compared to:  If a donor is physically or mentally weak and the donor’s savings are diminished and he or she is left without adequate support after the transfer, independent legal advice is required.

I am writing this email to express my gratitude for the moral support you have given me at the time I needed the most.  By the time I reached the court house all my nervousness had gone and I was very comfortable.  Thank you for the long ride.  I want to take this opportunity to thank everybody in your office who have been very kind and supportive.  Not worried about the outcome of the case, I thank GOD for placing me in the hands of a team of respectful excellent professionals who truly care. Thank you.
-Anju Aragam, Somerset County, NJ

TESTIMONIAL

My wife and I wanted to express our gratitude for the guidance and patience from you and your staff along this journey. Life is strange at times and the things that bring us together can be just as strange, if not more.

I not only got to put a few bucks in the bank, but got to reconnect with my cousin Sarah, which was a great surprise for me. That alone was worth the journey for me. Getting to know her and the family has been really nice.

I know it was a long day for all of us in mediation, but I really am blessed to have gotten to know you and talk with you. I admire your skills, work ethic and attitude regarding time and Patience. When the opposing attorney was running her big mouth and doing her thing, you never lost your composure, nor your position. I’m hoping it’s one of the nuggets I’m able to take and implement in my personal/professional life.

The short version of this story is that you have a lot to offer people, you’re a true, trusted advisor. Your words and actions seem to align with your values, which is like common sense, very hard to come by now a days. Your staff does a great job as well. Please let them know that as often as you can.

Keep up the good work Fred and thanks again.

– Mike Price – Plainfield, IN

Joint Bank Accounts and Undue Influence in New Jersey

With joint bank accounts there is a different standard of proof than with other lifetime transfers because joint bank accounts are governed by the Multi –Party Deposit Account Act under N.J. banking law.

Under the Act joint accounts belong to the parties in the same proportion as the dollar amount ($$$) deposited by each party into the account unless:  The terms of their agreement indicate a different intent or there is clear and convincing evidence that at the time the account was created the intent of the parties was different than the alleged proportional ownership.

The act creates a rebuttable presumption of survivorship of each party to the joint account(s).

Even if no undue influence is found, the court can look at all the direct and circumstantial evidence available to determine whether the decedent intended to create survivorship rights in the joint account to the survivor named on the account.

Procedural Issues Related to Defending Testamentary & Trust Undue Influence Claims

The contestant to a will may file a written objection (a caveat) to a will prior  to the will being offered for probate.  This filing prevents the surrogate from probating the will.  The proponent of the will then must seek judicial approval in the Chancery Division, Probate Part of the Superior Court of New Jersey in accordance with Rule 4:82.

If the will already has been admitted to probate by the surrogate, the contestant must file a verified complaint and order to show cause with the surrogate’s court seeking to set aside the probate judgment of the surrogate.

Filing A Caveat

Evidence Necessary by Your Attorney to be Successful in the Defense of a Will and/or Trust in Litigation

The mental condition of the trust maker/testator/donor prior and subsequent to the drafting of the will or the making of a trust or lifetime gift transfer demonstrates the testator’s/donor’s/trust maker’s capacity at the time the will/trust was made or the gift effectuated.

Any declarations made prior or subsequent to the creation of the will or trust or the making of the gift may demonstrate the testator’s/donor’s relationship with the person who received the economic value of gifts made before or after death.

WHAT EVIDENCE HELPS YOUR CASE?

Fact witnesses – These witnesses are critical to demonstrate the physical and mental capacity of the decedent before the decedent’s death.  Usually these witnesses are close personal friends of the decedent or family members.

Attesting Witnesses to a Will or Trust or Gift – Opinions of witnesses who were present at the signing of the will, trust or gift are afforded a great deal of credibility and believability as these witnesses were present and viewed the person during the will, trust or gift execution.

Attorney as Witness – The attorney is a useful witness as he or she observes the testator/donor from the time of the initial client meeting, through the drafting of the relevant planning documents and at the time of the document execution.

Treating Physician – A physician may qualify as both a fact witness and an expert witness, and the physician may testify to all treatment including mediations provided to the decedent and all conversations with the decedent.

Decedent’s Hospital and Medical Records – These records may be introduced to demonstrate the capacity of the testator/donor received at the hospital.

The Use of an Expert in Your Case

Parties often use an expert witness(es) when litigating a trust or estate dispute. Even though many of these cases are tried before a judge rather than a jury, the evidence and proofs required in this type of litigation often leads the parties to enhance their case with expert testimony. When an expert is called upon he or she is generally asked to offer an opinion on the following subjects.

Typical topics for an expert include the following:

The standard-of-care expert: This witness testifies to whether the trustee, executor, fiduciary or defendant met a standard of care (or failed) to meet a standard of care under the facts of the case.

Investment experts: These witnesses testify on matters such as whether the fiduciary prudently managed the trust assets and/or whether a particular investment was sound or unsound.

Construction-of-instrument experts: These witnesses testify on matters such as the interpretation and meaning of trusts, wills and other legal documents.

Competency experts: These experts opine on whether an elderly or disabled person was competent for the purpose of making a certain transfer, gift, etc. or whether the transferor was susceptible to the undue influence, duress or coercions of another person.

Treating physicians: These witnesses testify on matters such as whether the elderly or disabled transferor was competent and whether his or her mental faculties were diminished by physical ailments, cognitive deficits or the effect of certain medications.

Questioned document examiners: These experts testify about matters such as whether a person’s handwriting was forged and whether pages in a document have been improperly substituted.

Forensic accountants: These witnesses testify about confusing financial transactions, particularly if the documentation is incomplete or the case involves commingled funds.

Damage experts or appraisers: Certain types of litigation may require that a party establish the value of an asset such as real property or an interest in a closely held business, while others might require that a party establish damages based on lost rents, or market appreciation. In certain circumstances, an expert such as an investment expert or a forensic accountant might also serve as an expert with regard to certain types of economic damages.

Transactional experts: Expert witness testimony may also be helpful in circumstances where a trust or estate owns unique assets or engages in specialized types of transactions or businesses.  This expert will evaluate and offer an opinion of the defendant’s standard of care.

Selecting Issues for Expert Testimony and the Admissibility of That Testimony

When considering whether to retain an expert, the trial attorney will often times consider the purpose(s) for which the expert may be used. Some attorneys consider retaining experts as consultants at the outset of a case. A consultant can help evaluate the case, select theories of liability or defense, educate counsel, suggest avenues of investigation or discovery, and recommend testifying experts. Consultants can provide greater value when retained early in the case, but they are expensive and may be premature in many traditional probate litigation cases. When deciding whether to retain an expert/consultant to provide testimony in a certain area, the decision often involves weighing the potential benefit to be gained from an expert’s testimony against the cost of using that expert, i.e., both the monetary cost of that expert’s testimony and the potential cost to the case, which may involve considering factors such as the relative importance or unimportance of the issue that the expert will testify about. The bottom line….each case is unique and experience will often dictate whether an expert is needed and if s

Fred Niemann, Will Contest Litigation Attorney in NJ

Fred Niemann, Will Contest Litigation Attorney in NJ

o the timing of hiring a consultant/expert.

If you suspect Undue Influence, or you have been accused of Undue Influence or believe that the mental incapacity of a decedent or living elderly person can be challeneged, then contact Fredrick P. Niemann, Esq. today, toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com I’m easy to talk to and genuinely care about the outcome of your concerns.