Undue influence

Question 1

What are the ways to prove undue influence?

Answer 1

1. By proving the elements of undue influence

2. By raising a presumption that there was undue influence

Question 2

Elements of undue influence

Answer 2

1. There was influence exerted on the testator
2. The effect of the influence was to overpower the testator’s free agency
3. The product of the influence was a will, or portion thereof, that would not have been executed but for the influence

Question 3

There will be a presumption that there was undue influence if it is shown that:

Answer 3

1. The beneficiary was a substantial beneficiary
2. The beneficiary occupied a confidential relationship with the testator
3. The beneficiary was actively involved in procuring the will

Question 4

What happens after establishing presumption of undue influence/elements of undue influence?

Answer 4

Proponent first establishes will properly executed

Contestant must prove elements for presumption

Burden of proof shifts to proponent

Once the presumption has been raised, Summary Judgment is inappropriate

Proponent MUST have opportunity to rebut, by a preponderance of the evidence

Question 5

Substantial beneficiary

Answer 5

disproportionate share of the property (compared to others of same degree of relation)

substantial increase from previous will

receives significantly more than under intestacy

Question 6

Confidential relationship

Answer 6

In addition to family members, these may also be doctors, lawyers, priests, or servants

Relations which exist wherever one man trusts in and relies on another

May be moral, social, domestic, or personal

Spouse traditionally NOT included, UNLESS marriage procured by fraud, undue influence, etc.

Question 7

What are the factors to prove someone was actively involved in procuring the will?

Answer 7

Seven factors:

1. Presence of the beneficiary at the execution of the will
2. Presence of the beneficiary on those occasions when the testator expressed a desire to make a will
3. Recommendation by the beneficiary of an attorney to draw the will
4. Knowledge of the contents of the will by the beneficiary prior to the execution of the will
5. Giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will
6. Securing of witnesses to the will by the beneficiary
7. Safekeeping of the will by the beneficiary subsequent to the execution

Question 8

Attorney-client relationship and undue influence

Answer 8

An attorney should take great care not to unduly influence the creation of a will

Attorneys clearly have a fiduciary duty and participate in the creation of the instrument

However, hiring the attorney does not make him a substantial beneficiary by itself

A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a related person any substantial gift unless the lawyer is related to the testator