Probate, trust, guardianship and inheritance litigation
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Undue Influence In Ohio

By:  Daniel McGowan, Esq.

Undue influence is one of the most common allegations in an Ohio will contest.  Other common grounds include lack of testamentary capacity, failure to comply with the requirements to make a valid will under Ohio law, and fraud.

What Is Undue Influence?

Undue influence is defined in Ohio as “‘any improper or wrongful constraint, machination, or urgency of persuasion whereby the will of a person is overpowered and he is induced to do or forebear an act which he would not do or would do if left to act freely.'” Kasick v. Kobelak, 184 Ohio App.3d 433, 2009-Ohio-5239, 921 N.E.2d 297, P 26 (8th Dist.), quoting Ross v. Barker, 101 Ohio App.3d 611, 618, 656 N.E.2d 363 (2d Dist.1995).

With respect to Ohio wills and trusts, “where an individual’s influence restrains a testator from disposing of his or her property in accordance with the testator’s own wishes and judgment and substitutes the wishes or judgments of another, such influence is undue.” West v. Henry, 173 Ohio St. 498, 501, 184 N.E.2d 200 (1962).

The influence must “so overpower and subjugate the mind of the testator as to destroy his free agency and make him express another’s will rather than his own.” Rich v. Quinn, 13 Ohio App.3d 102, 103, 13 Ohio B. 119, 468 N.E.2d 365 (12th Dist.1983).

What Are The Elements Of Undue Influence In Ohio?

In Ohio, there are four elements to an undue influence claim.  To succeed on a claim of undue influence, one must establish:

  1. A susceptible testator;
  2. Another’s opportunity to exert undue influence;
  3. The fact of improper influence exerted or attempted; and,
  4. The result showing the effect of such influence.

See Redman v. Watch Tower Bible & Tract Soc’y, 69 Ohio St. 3d 98, 101, 630 N.E.2d 676, 678-679, 1994 Ohio LEXIS 872, *9, 1994-Ohio-514.

What Is A Susceptible Testator?

A susceptible testator is one of the elements required to prove undue influence under Ohio law.  Susceptibility of a testator is highly factual.

Evidence that Ohio courts consider in finding a susceptible testator include:

  • Advanced age
  • Physical infirmities
  • Mental condition
  • A decline in health
  • Fear of being placed in a nursing home or being abandoned (fear that if the testator does not do what the influencer wants, bad things will happen)
  • Dependence on caregivers
  • Any other reason that would make a testator yield to the desire or will of another person

What Is An Opportunity To Exert Undue Influence?

Another person’s opportunity to exert undue influence is the second element of an undue influence claim.

Ohio courts consider that a person has the opportunity to exert undue influence:

  • If they spend significant time with the testator or live with the testator
  • If the testator is dependent in some way on the person
  • If the person is responsible for helping the testator with finances or daily living activities

Basically, a person who is in a trusted position in the testator’s life or spends significant time with the testator can have the opportunity to exert undue influence.  However, the opportunity to exert undue influence is not the equivalent of actually exerting undue influence.

What Is Evidence Of Undue Influence Actually Exerted Or Attempted?

The third element of undue influence – undue influence actually exerted or attempted – is perhaps the most difficult to prove.  Most evidence in undue influence will contest cases is circumstantial.  Examples of evidence presented in Ohio courts to prove undue influence was exerted or attempted is:

  • The undue influencer contacted the drafting attorney of the will and was present at the execution of the will
  • The undue influencer made the appointment for the testator to make and sign the challenged will
  • The undue influencer drove the testator to the will signing
  • The undue influencer provided the attorney with the names of the beneficiaries and the terms of the will
  • The undue influencer kept the original of the will after it was signed
  • The undue influencer badmouthed family members to the testator to promote their disinheritance

The Result Showing The Effect Of Such Influence

The last element of undue influence in Ohio is a straightforward one.  The undue influencer has to benefit from the challenged will.  Usually the will names this person as a significant beneficiary and greatly increases their share of the estate from prior versions of the will.

When Does A Presumption of Undue Influence Arise Under Ohio Law?

A presumption of undue influence arises in an Ohio will contest in certain situations.

When assets are left to a drafting attorney of the will, a presumption of undue influence can arise:

The presumption of undue influence arises upon proof that (i) the relationship between an attorney and testator is that of attorney and client, (ii) the attorney is a beneficiary in the will, (iii) the attorney is not related by blood or by marriage to the testator, and (iv) the attorney actively participated in the preparation of the will. Once the contestants establish these facts, a rebuttable presumption of undue influence arises, thereby shifting onto the attorney the burden  of persuasion, by a preponderance of the evidence, that he has not brought undue influence to bear upon the testator.

A presumption of undue influence also arises if a non-relative caretaker benefits from the will.  The roles of attorney and caretaker are positions of trust, and therefore it is presumed that if someone in either of these roles benefits from a decedent’s will, undue influence may have occurred.  An Ohio probate lawyer can help you determine if you have a case for undue influence.




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