Can a Person With Capacity Still Be Unduly Influenced?

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The possibility of undue influence opens an estate to extensive and costly litigation if the testamentary document was executed when the Testator was dependent on others. Most often, elderly clients, as a result of their age and vulnerability, are likely more susceptible to undue influence by those around him or her, especially those who regularly provide him or her with care. Mental capacity to execute a Will or Trust document will be found if the Testator understands the nature of the act, i.e., that this is a way to distribute her property after death, understands the nature of his or her property, i.e. that he or she owns a home and several bank accounts. and lastly, that he or she understands who her relations are. Determining whether the document was tainted by undue influence is not quite as clear an analysis.

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