The third main way to challenge the validity of a will occurs when another person places undue influence on the testator.
Undue influence occurs when a third person forces the testator to make a disposition that the testator did not want to make or was deceived into making.
Factors that tend to show undue influence include:
- testator was susceptible to undue influence (e.g. easily manipulated or a fearful person),
- the third person had the opportunity to commit undue influence (e.g. the third person was in a "close relationship" with the testator as a caregiver, close friend, patient, etc.), and
- the third person benefited from the undue influence (either personally or through someone else).
For example, undue influence could occur if a neighbor began going over to the testator’s house shortly before the testator died to "talk" with the testator. Then, just before the testator’s death, the testator changed his or her will to devise some property to the neighbor – who otherwise would have received nothing from the testator.
The bottom line is that the will the testator creates must be the product of his or her free choice. If it can be shown that the testator was unduly influenced in making the will, a court may determine the will (or a particular devise in the will) to be invalid.
Next, let’s take a look at the fourth main way to challenge a will.