Undue Influence: Checklist of Possible Indicators of Undue Influence

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There is no simple test for determining whether there is a valid objection to a will on the basis of undue influence.  It is a question of fact for a judge or jury to determine, often based on circumstantial evidence.  No single factor is determinative and all relevant facts should be taken under consideration.  Solely for the illustrative purposes of this blog post the “testator” is the deceased maker of the will, the “proponent” is a person or entity (such as a charity) seeking to have the will admitted to probate and alleged to have used undue influence to obtain a benefit under the will, and the “objectant” is a person or entity objecting to the probate of the will based on it being the result of the proponent’s undue influence on the testator.    

Here is a list of considerations that may be relevant, especially when several are simultaneously present, to an evaluation of whether there may be a valid objection to the probate of a will based on undue influence:

  1.    Is the alleged undue influence more than a mere request by the proponent-beneficiary to be treated kindly by the Testator?  (“Dad, since I am almost bankrupt due to no fault of my own, your will should leave more to me than to my filthy rich siblings.”) 
  2.    Did the alleged undue influence amount to imposing the will of the proponent-beneficiary’s upon the testator?  (Restraining testator’s independent action and destroying testator’s free agency by, in effect, substituting the intent of the proponent-beneficiary.) 
  3.    There must be actual acts of alleged undue influence.  (Such as, by way of example only, the proponent-beneficiary repeatedly demanding of a bed-ridden infirm testator that a will be changed and making clear that the testator was dependent on the proponent-beneficiary for adequate home health care.)
  4.    Is there a causal relationship between the alleged undue influence and the bequest to the proponent-beneficiary leading to an actual benefit to the proponent-beneficiary?  (Testator to lawyer: “Please draw up the will so that my crazy son, who has been trying to pressure me to leave him more than he deserves, gets most of my estate—not because of his pathetic attempts to intimidate me, but because I promised his late mother I would take care of him no matter how obnoxiously he behaved towards me.”) 
  5.    Did the proponent-beneficiary have a motive to use undue influence on the testator?  (Perhaps the beneficiary was under terrible financial pressure from creditors and desperately needed the bequest.) 
  6.    Did the beneficiary have an opportunity to use undue influence on the testator?  (Perhaps the testator was living in the home of the proponent-beneficiary.) 
  7.    Was there a fiduciary or confidential relationship between the testator and the proponent-beneficiary?  (Such as a lawyer, clergyman, accountant/financial advisor, or guardian of the testator, usually acting in the absence of meaningful independent countervailing advice to the testator.) 
  8.    Was the testator in a weakened mental state when the alleged undue influence took place?  (This could be, by way of example only, the after-effects of a stroke, severe depression after the loss of a loved one, early stages of dementia, or while under strong pain medication after major surgery.) 
  9.    Was the testator of advanced age?  (This could mean mid to late eighties or older.) 
  10. Did the proponent-beneficiary isolate the testator from the objectant during the relevant period?  (This could involve wrongfully interfering with visits or communications to testator by the objectant or by otherwise restricting access to the testator.)
  11.    Was the testator very dependent upon the proponent-beneficiary, who is alleged to have exercised dominance and control over the testator?  (This could be physical dependence, such as for living accommodations, assistance in activities of daily living, and home health care, or the psychological dependence of a testator who is very lonely, anxious, and fearful.) 
  12.    Did the proponent-beneficiary exercise control over testator’s assets prior to the making of the will?  (As by managing testator’s finances.) 
  13.    Did the testator feel threatened by the proponent-beneficiary?  (This may be shown by the testimony or statements third parties to whom the testator may have said that he or she felt threatened by the proponent-testator or that the testator found the proponent-testator to be very intimidating.)
  14.    Was there conduct tantamount to duress and coercion by the proponent-beneficiary?  (For example, a daughter says “If you don’t give me your house in your will, you will never see your grandchildren again.”)
  15.    Was there a history of elder abuse against the testator in which the proponent-beneficiary played a role.   (For example, by being the abuser or by being present and passive while a spouse engaged in a pattern of elder abuse.) 
  16.    Is the proponent-beneficiary a serial undue influencer?  (People who have exhibited a prior pattern of establishing relationships with vulnerable elderly or infirm wealthy people and then being named in their wills.)
  17.    Is the proponent-beneficiary someone who would not normally be expected to inherit from the testator to the exclusion of the family?  (Such as a health care attendant who might be expected to receive some bequest, but not the entire inheritance.) 
  18.    Has the proponent-beneficiary engaged in a pattern of relationship poisoning and self-promotion?  (This is akin to the proponent-beneficiary brain-washing the testator by repeatedly bad-mouthing the objectant, while constantly praising himself or herself.) 
  19.    Had there been financial exploitation of the testator by the proponent-beneficiary during the years preceding the making of the will?  (This could take the form, at times when the testator was in a weakened state, of inducing the testator to create trusts or make unusually large loans and gifts benefiting the proponent-beneficiary.) 
  20.    Is the will at issue a major departure from prior wills?  (For example, three wills divide the estate equally between the proponent-beneficiary and the objectant, but the will at issue disinherits the objectant.)
  21.    Is the will at issue a major departure from testator’s prior expressions of testamentary intent?  (For example, the testator has, before witnesses, told relatives that the objectant would inherit, but then the will gives all to the proponent beneficiary.) 
  22.    Did the proponent-beneficiary choose a lawyer with whom the proponent-beneficiary had a prior relationship as the attorney to draft the testator’s will?  (This could be the proponent-beneficiary’s own attorney or someone with who the proponent-beneficiary had some other relationship that could be expected to result in loyalty to the proponent-beneficiary.) 
  23.    Did the attorney draftsperson of the will depart from generally accepted estate planning procedures?   (This could be many things, such as the lack of records, the absence of sufficient inquiry regarding a change from a prior will, or a failure to confirm testamentary capacity.)
  24.    Was the proponent-beneficiary have involvement in the process of drafting the will?  (This could mean drafting or suggesting particular provisions, acting as a means of communication between the testator and the attorney who drafted the will, or being physically present when the attorney and the testator discussed the provisions to be incorporated into the will.) 
  25.    Was the proponent-beneficiary present when the will was executed?    (This may be combined with the proponent-beneficiary personally transporting the testator to and from the will execution ceremony or, possibly, having it take place at the proponent-beneficiary’s residence.)

The foregoing is not intended to be an exhaustive list of considerations in evaluating a potential undue influence claim.  Drawing conclusions from two or three instances of conduct described above may possibly lead to an incorrect conclusion.  This is an analysis that should be performed by experienced estate litigation counsel.