What is the difference between lack of capacity and undue influence? We talk a lot about these concepts on our videos, our blog, all of our websites, because it really is the most important part of a Trust or Will contest. We’re almost always bringing a claim to try to overturn a Trust or Will based on lack of capacity or undue influence. But those two claims are quite different.
Lack of Capacity
With lack of capacity, you’re looking at the parent, the elder, the person who created the Trust or Will. And you’re trying to figure out did they have the mental requirements, under the law, to be able to create a Trust or a Will? To overturn a Trust or Will, you need medical evidence that shows a mental defect existed at the time the Trust or Will was signed. All of the focus is on the parent.
Undue Influence
With undue influence, however, the focus isn’t just on the elder. There is one element that focuses on the elder—they must be vulnerable to undue influence—but after that, we’re looking more at the bad actor. What actions did the bad actor take to unduly influence the elder? Were they in a position of authority? Were they controlling medications or food or access to family members and friends? All of these factors come into play with undue influence. Undue influence essentially means coercion—a bad actor replaced the intent of the elder with their own intent. The law presumes that the actions of the bad actor establishes the existence of undue influence.
We like to say that undue influence is capacity light. Meaning that you don’t have to prove an actual lack of capacity to succeed with undue influence, you only have to show that there was enough of a mental capacity issue to make the elder vulnerable to undue influence. You then must focus on the actions of the undue influencer to prove undue influence.
That is a basic overview of the difference between undue influence and lack of capacity. You typically will see both claims being made to overturn a Trust or Will, but that doesn’t always mean that both claims are equally valid. Sometimes the evidence will support one claim over the other depending on the type of medical evidence you have.
