How do you prove undue influence in Arizona?

By clear and convincing evidence of the surrounding circumstances. Arizona courts consider whether the influencer made misrepresentations, whether the document was prepared and signed hastily or in secret, whether the beneficiary participated in procuring it, whether it departs from prior plans or is unnatural in light of the family, whether the maker was vulnerable, and the closeness of the relationship. Direct evidence is rare; the case is usually built from these factors.

When does the presumption of undue influence arise?

When the person who benefits had a confidential relationship with the maker, was active in procuring the will, trust, or transfer, and is a principal beneficiary. The burden then shifts to that beneficiary to show the transfer was the maker’s free act.

What does A.R.S. § 14-2712 do?

It sets the burden of proof in contests of wills and other governing instruments: the contestant must establish undue influence (or lack of capacity, fraud, duress, mistake, or revocation) by a preponderance of the evidence, subject to the presumption described above, and it allows the court to consider the same factors for trusts, deeds, and beneficiary designations.

What happens if undue influence is proved?

The will, trust, amendment, deed, or designation procured by undue influence is set aside. If part of a document was procured by undue influence, the court may invalidate only that part. The property then passes under the prior valid document or by intestacy.

Can a caregiver or family member who helped with the will be liable?

Yes. Beyond losing the gift, a person who used undue influence over a vulnerable adult may face claims under Arizona’s vulnerable adult statute, including double damages and attorneys’ fees, and can be ordered to return property.

How long do I have to bring an undue influence claim?

It depends on the document. A will contest must be brought within the probate deadlines; a trust or deed challenge is subject to its own limitations period, which can start to run at death or at discovery. Get advice promptly, because deadlines can be short.

Arizona Undue Influence Attorneys

Part of our Arizona Probate and Estate Litigation practice.

Berk Law Group’s Arizona undue influence attorneys contest and defend wills, trusts, deeds, beneficiary designations, and gifts that are challenged on undue influence grounds. Undue influence is pressure that overcomes a person’s free will and substitutes someone else’s wishes for their own; ordinary persuasion, affection, or advice is not enough. Arizona courts weigh factors such as fraud, haste and secrecy in signing, the beneficiary’s involvement in preparing the document, a departure from earlier plans, an unnatural result, the maker’s vulnerability, and the closeness of the relationship. Where a beneficiary in a confidential relationship was active in procuring the document, a presumption of undue influence arises and the burden shifts to that beneficiary to prove by clear and convincing evidence that the transfer was voluntary. A.R.S. § 14-2712 governs the burden of proof in these contests.

Basic Rules

A will (or other transfer of property, such as a trust, deed or gift) may be canceled or set-aside in Arizona for various reasons. For example, a will or trust may be invalid because of extreme influence, or where the will does not meet the Arizona requirements to be valid. A will may not meet Arizona requirements if the person signing the will, the testator, lacked testamentary capacity (was of unsound mind) or if someone else exploited or took advantage of a vulnerable testator.

Under A.R.S. § 14-2712(B), “it is a rebuttable presumption that a person who executes a governing instrument is presumed to have capacity to execute the governing instrument and to have done so free from excessive influence and duress.” That basically means that, subject to the presumption of undue influence that may be triggered as explained below, a will or trust is presumed to be valid and have been executed with capacity and without illegal influence.

Basically, improper influence occurs when an individual exercises such control over the testator that the will or other document does not reflect the testator’s true intentions and desires. Instead, the will, trust or other document reflects the intentions and desires of someone else.

Factors for Determining Whether Influence is “Undue”

In determining whether excessive influence was used, the courts look at all of the circumstances. Generally the court will focus on whether:

the influencer lied to the testator;
the will was prepared and signed quickly, without deliberation or consideration;
the execution of the will was hidden from others, such as family members;
the person benefited by the will participated in having it drafted and signed;
the will was inconsistent with prior plans;
the will was unreasonable in view of the testator’s circumstances, attitudes and family;
the testator was vulnerable (i.e. had a medical or mental problem); and
the testator and the beneficiary had a close relationship.

It’s important to note that there are differing factors in determining whether undue influence or fraud are at play. Check out this article for more information: Understanding the Difference Between Fraud and Undue Influence.

Of course, not all influence is inappropriate. To be undue, the influence must rise to the level of where the influencer causes the person to disregard his/her own desires and, instead, follow the directions of the influencer. If a will, trust or other document was adopted because of undue influence, it can generally be cancelled. Or the gift to the influencer can be set-aside.

If you have any questions about whether a will, trust, deed or other document is invalid because of inappropriate influence or for other reasons, please give us a call at 480.607.7900 or contact our office.

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Presumption of Undue Influence

Anyone who helps a loved one prepare a will, trust or other transfer of property should be careful. Arizona law may require proof with clear evidence that they did not unduly influence the family member.

The burden of proof in litigation sometimes determines who wins the case. If the party who has the burden cannot satisfy the burden – cannot present sufficient evidence to satisfy the legal standard – the other party does not have to present any evidence to win the case.

In Arizona, a party who is trying to uphold a will, trust or other transfer may have the burden of proving that there was no excessive influence if the presumption of arises. The presumption applies if three elements exist:

The person had a confidential relationship with the creator of the will – was the professional advisor or family member, for example;
The person was active in procuring its creation and execution; and
The person is a principal beneficiary of the will.

All of these elements must exist in order to require the party trying to uphold the will or trust to prove the absence of undue influence. Where the presumption arises, the proponent (the person trying to enforce the will or trust) then has the burden of proving with clear evidence that there was no improper influence.

Alternatively, excessive influence is presumed if the person who prepared the document (i.e. the attorney) or the preparer’s family is the principal beneficiary of the will. But, this presumption does not apply if the preparer is related to the person adopting the will.

Frequently Asked Questions About Undue Influence in Arizona

How do you prove undue influence in Arizona?: By clear and convincing evidence of the surrounding circumstances. Arizona courts consider whether the influencer made misrepresentations, whether the document was prepared and signed hastily or in secret, whether the beneficiary participated in procuring it, whether it departs from prior plans or is unnatural in light of the family, whether the maker was vulnerable, and the closeness of the relationship. Direct evidence is rare; the case is usually built from these factors.
When does the presumption of undue influence arise?: When the person who benefits had a confidential relationship with the maker, was active in procuring the will, trust, or transfer, and is a principal beneficiary. The burden then shifts to that beneficiary to show the transfer was the maker’s free act.
What does A.R.S. § 14-2712 do?: It sets the burden of proof in contests of wills and other governing instruments: the contestant must establish undue influence (or lack of capacity, fraud, duress, mistake, or revocation) by a preponderance of the evidence, subject to the presumption described above, and it allows the court to consider the same factors for trusts, deeds, and beneficiary designations.
What happens if undue influence is proved?: The will, trust, amendment, deed, or designation procured by undue influence is set aside. If part of a document was procured by undue influence, the court may invalidate only that part. The property then passes under the prior valid document or by intestacy.
Can a caregiver or family member who helped with the will be liable?: Yes. Beyond losing the gift, a person who used undue influence over a vulnerable adult may face claims under Arizona’s vulnerable adult statute, including double damages and attorneys’ fees, and can be ordered to return property.
How long do I have to bring an undue influence claim?: It depends on the document. A will contest must be brought within the probate deadlines; a trust or deed challenge is subject to its own limitations period, which can start to run at death or at discovery. Get advice promptly, because deadlines can be short.

Contact Our Experienced Estate Attorneys

Undue influence often overlaps with related schemes to redirect an inheritance, see our discussion of inheritance sabotage and beneficiary manipulation.

Our probate and estate attorneys have experience handling a wide variety of will contest, trust and other probate-related disputes. If you believe that an estate document or property transfer was the result of improper or excessive influence or you have questions regarding a probate dispute, contact the Scottsdale, Arizona estate lawyers at Berk Law Group, P.C.

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Undue Influence