The financial exploitation of elders is becoming an exceedingly common occurrence as the population ages. Financial elder abuse is the illegal or improper use of an elder's funds, property, or assets. The abuse can take many forms, ranging from outright theft via forged checks or withdrawals to the alteration of beneficiary designations. One form of such abuse is improperly influencing an elder to make or alter a will, thereby disposing of estate assets in a manner contrary to the elder’s true intentions. In most cases, the perpetrator of this abuse is a family member or trusted friend. Accordingly, the exploitation may not be discovered until the passing of the elder who allegedly made the will (the “testator”). 



Time can be of the essence after a victim’s passing, as probate deadlines begin to run immediately upon service of notice of the offering of a will for probate. A legal challenge to a will (a “caveat”) must be made immediately upon receiving this notice. Will caveats are typically made on two grounds: Lack of testamentary capacity and/or undue influence. 



Diminished capacity often plays a central role in a perpetrator’s ability to influence a testator to create or alter a will. Because the required capacity to draft a will is lower than a contract, challenging a will solely on the ground of lack of testamentary capacity can be very challenging. In general, a testator will be deemed to have the required capacity to make a will when they are “capable of framing a decided and rational desire as to the disposition of his or her property.” Courts typically apply a 4 part test in which they ask whether the testator (1) understands the nature of the act (that is, that this is the execution of an instrument that will dispose of the testator's property at death), (2) understands the nature of the property that is subject to disposition, (3) is capable of remembering generally those individuals who, by blood or affection, would be the natural objects of the testator's bounty, and (4) is capable of conceiving and expressing any intelligible distribution scheme. Because the required capacity is so minimal, an individual suffering from Dementia or other cognitive impairment will not be presumed to lack capacity. In fact, capacity is presumed and the caveator most overcome this presumption. Even though a testator’s diminished capacity may not by itself be sufficient enough to overturn a will, it is highly relevant in determining whether any undue influence was exercised over them.



A scheme of control and influence being exerted by the perpetrator over the testator is required to overturn any will on the grounds of undue influence. This “control” must reach a level where the perpetrator’s desires are substituted for those of the testator. Perpetrators will typically engage in a variety of behaviors to exert their influence such as isolation from friends and family, control of medication, control of finances, and taking the lead role in arranging the drafting and execution of the will. This may mean everything from communicating with the drafting attorney and transporting the testator to their office to actually drafting the will.



Convincing a judge or jury of lack of capacity or undue influence is a matter of presenting compelling evidence in a variety of forms. This typically involves a combination of financial and medical records and testimony of family and friends demonstrating the will was unlawfully procured. For instance, fraudulent wills often alter a dispossessory scheme that had been in place for a significant period of time with a long-standing attorney or disinherit the expected beneficiaries/family members. Absent initiation of litigation, however, these records and testimony will not be discoverable by those seeking to challenge a will. That is why in addition to remaining vigilant in protecting an elder’s finances and legal affairs during their life, potential caveators must be quick to contact an attorney once any formal proceedings are filed in probate court.