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Wills and Undue Influence

On Behalf of | Feb 17, 2021 | Miscellaneous, Property Law

A will in Virginia is a legal instrument providing for the transfer of property after death. However, a will can be challenged and legally set aside for a number of reasons. In Virginia, one such reason a will can be set aside is undue influence.

What is Undue Influence?

In simple terms, undue influence means that the will maker or testator did not do so freely, but only because of the influence of another person. The key word is undue. In other words, influence alone is not enough to set aside a will. The influence must instead amount to coercion or duress; as the Supreme Court of Virginia has put it, the attitude of the will maker must have been something like, “It is not my will but I must do it.”

In Virginia, a will may be challenged in court by arguing that the beneficiary is only receiving property due to undue influence. In most civil cases, such as negligence for personal injury, a plaintiff need only prove their claims by a preponderance of evidence, meaning that it is more likely than not that they are in the right. However, undue influence is like fraud and so must be proven by “clear and convincing” evidence, meaning a “firm belief or conviction” that the issue has been proven.

How Can Undue Influence Be Proven?

In Virginia, proving undue influence to set aside a will is usually done through circumstantial evidence. Such evidence could include the will maker’s age, mental ailments, unusual circumstances, a close relationship with the beneficiary of the will (the person entitled to receive the property), and prior wills of the testator inconsistent with the challenged will.

In Virginia, undue influence generally arises in two situations. The first is when the testator suffered great weakness of mind while there are suspicious circumstances. The second is when there was a confidential relationship between the will maker and the will’s beneficiary (who will typically try to enforce the will in court).

Weakness of Mind

In any given case, the jury will have to decide whether the facts establish weakness of mind or not. Sometimes, the court will have to rule whether the evidence is sufficient for the jury to find weakness of mind. Each case presents its own unique set of facts, so there is no set formula to determine whether a will maker had great weakness of mind.

For example, in the case of Gelber v. Glock, a woman who had been diagnosed by her doctor as having been in a state of delirium and cognitively impaired; who was in a severely weakened physical and mental condition; and who experienced periods of disorientation and confusion suffered from great weakness of mind.

By contrast, in the case of Nuckols v. Nuckols, evidence that a woman was of advanced age and more lucid on one day as opposed to another was insufficient to prove great weakness of mind.

Finally, great weakness of mind is never enough on its own; there must also be suspicious circumstances. One example of suspicious circumstances is when the will maker leaves all of their property to one person, in a manner inconsistent with prior wills or estate plans. For instance, in Gelber v. Glock, a woman left all of her property to just one of her children while confined in a hospital, without seeking legal or financial advice, where before she had carefully and deliberate engaged in estate planning with legal and financial advisors, involving all of her children. These circumstances, the Court determined, were sufficiently suspicious.

Confidential Relationship

The other way to prove undue influence is by establishing a confidential relationship between the will maker and the beneficiary. In order for a confidential relationship to arise in undue influence cases, the will maker and the beneficiary must be on unequal ground. The exact test in Virginia is whether “the parties do not deal on equal terms, but, on the one side, there is an overmastering influence, or, on the other, weakness, dependence, or trust, justifiably reposed.”

Examples of confidential relationships are numerous. For instance, a parent and a child may be in a confidential relationship where the child is the parent’s agent (such as holding a power of attorney). Family members may be in confidential relationships too, where one handles the finances of the other. Confidential relationships are not limited to family, however. For instance, co-owners of joint bank accounts may be in a confidential relationships, as well as a person who relies on another for assistance with daily needs and activities. What’s key is that the will maker and the beneficiary be on an uneven playing field.

Fishwick & Associates: Experienced Estate Litigation Attorneys

If you believe that you or a loved one with a will was unduly influenced, or if you are the beneficiary of a will that is being challenged on the basis of undue influence, the experienced Virginia attorneys at Fishwick & Associates can help you understand your legal options at no cost to you. To schedule your confidential consultation, complete our online contact form or call us at 540-345-5890.


Va. Code § 64.2-403.

Weedon v. Weedon, 283 Va. 241, 720 S.E.2d 552 (2012).

State Farm Mut. Auto. Ins. Co. v. Remley, 270 Va. 209, 618 S.E.2d 316 (2005).

United Dentists, Inc v Bryan, 158 Va. 880, 164 S.E. 554 (1932).

Gelber v. Glock, 293 Va. 497, 800 S.E.2d 800 (2017).

Nuckols v. Nuckols, 228 Va. 25, 320 S.E.2d 734 (1984).

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.