A will provides detailed instructions as to what should be done with a person’s money, property, and other assets after they have passed away. People are generally free to leave their assets to whomever they wish. In some cases, however, one or more of the beneficiaries might feel that someone has exerted undue influence on the writing of the will in order to benefit from it. This person might be a caregiver, a family member, or a court-appointed guardian or conservator who was close to the decedent in the months or years preceding death.
If you think your recently deceased loved one was pressured to change their will, South Dakota law allows you to contest the will in court. An estate litigation attorney can help you try to prove that it was executed under undue influence.
How to Raise the Presumption of Undue Influence
The South Dakota Supreme Court has stated the requirements for raising a presumption of undue influence in order to contest a will:
A presumption of undue influence arises when there is a confidential relationship between the testator and a beneficiary who actively participates in preparation and execution of the will and unduly profits therefrom.
The four elements you must prove to raise this presumption are:
- Susceptibility. The testator (person who created the will) had a mental or physical impairment that made them more easily influenced by others.
- Opportunity. The new beneficiary had the opportunity to unfairly pressure the person to make changes to the will.
- Disposition. The new beneficiary’s other actions show a pattern of exerting influence, such as trying to limit communication with friends and family members.
- Result. The will was changed in a way that benefits the person exerting undue influence.
For example, your loved one might have been an elderly person with physical or mental impairments that required the daily assistance of a younger caregiver. The caregiver may have often been alone with your loved one and in a position to benefit from the will. If you can show the will was changed in a way that ultimately did benefit the caregiver to an extent you feel was unreasonable, you might be able to raise the presumption of coercion.
You must be able to show undue influence by a preponderance of the evidence. This means you have enough evidence to convince the court there is a more than 50% chance your claim is true.
How a Defendant Can Rebut the Presumption of Undue Influence
The defendant does not have to show a preponderance of the evidence, as you do, but has only to show sufficient evidence to convince the court there was no undue influence. In other words, your burden of proof is greater than that of the defendant.
The defendant beneficiary can successfully rebut the presumption of undue influence by showing sufficient evidence that no one was ever prevented from communicating or visiting your loved one; that the new will was consistent with your loved one’s general wishes; and that your loved one had ongoing, competent, independent legal advice when completing the will. This might include copies of letters and phone records, photos or videos taken at family events, testimony from others familiar with your loved one’s wishes, and a statement from an attorney who represented your loved one when the new will was created.
Do You Feel Your Loved One Was Unduly Influenced When Executing a Will?
Your higher burden of proof and the complex requirements for raising and rebutting the presumption of undue influence make the services of an experienced attorney vital to your will contest. If you believe you’ve been unfairly cheated out of a rightful inheritance, you need an attorney who can advocate for your interests.
An experienced wills and estates attorney can help you to understand the details of a will contest and the legal procedures it requires. Contact us online, start a chat, or call us at 605-306-4100 to schedule a free consultation. We also encourage you to request a copy of attorney Jeff Cole’s free guide, True Intent: South Dakota Will Contests, to learn more about the estate litigation process.