Undue Influence (Ross & Reed, Page 7-2)

  1. Undue Influence: Generally
  2. Elements of Undue Influence.
  3. Presumptions Regarding Undue Influence.
  4. Burden of Proof.
  5. Summary.

A. Undue Influence: Generally

Courts are willing to set aside a will if the contestant can show that someone had induced the testator to make the will by “undue influence.” On the one hand, the notion of undue influence upon a testator is confused, and Courts are inconsistent in their definitions of the term and their judicial tests used to determine it. On the other hand, the common elements of undue influence are as follows.

  1. The testator was susceptible to the influence of others.
  2. The testator and the alleged influencer had some type of confidential relationship.
  3. The alleged influencer used that confidential relationship to secure a change in the testator’s post-death distribution of property.
  4. The testator actually did change his/her will plan as a result of the alleged influencer’s actions.
  5. The change is unconscionable.

The influencer need not be the direct beneficiary of the testator’s will to be culpable. Furthermore, the type of activities in which the influencing engages may be perfectly lawful. While Courts have not drawn sharp lines between undue influence and duress, they have found wills to have been the product of undue influence without finding any threat of physical force or coercion by the alleged influencer against the testator.

Offering a glimmer of hope to contestants, Courts have enshrined the law of undue influence in a number of presumptions:

  • When a contestant proves that the testator and the alleged influencer enjoyed a confidential relationship and the alleged influencer procured a change in the testator’s will resulting in a post-death distribution plan in favor of the influencer, undue influence is presumed. As a consequence, the contestant can get to the jury by proving:
    • A confidential relationship,
    • The importuning of a change in plans, and
    • Benefits inuring to the confidant/influencer.
  • A will drawn by a beneficiary or a close relative of the beneficiary is the product of undue influence.
  • An “unnatural devise” is a product of undue influence.

Undue influence cases break down into five types of relationships:

  • The second spouse who obtains the disinheritance of one or more children of a prior marriage.
  • A child of the testator who obtains the disinheritance of one or more other such children.
  • A non-spouse relative of the testator who obtains the lion’s share of the estate at the expense of other collateral heirs.
  • A helping professional who obtains all of part of the testator’s estate at the expense of the testator’s heirs.
  • A neighbor or acquaintance who obtains the testator’s estate at the expense of the testator’s heirs.

According to Ross & Reed, Courts tend to be more hostile towards the latter three types of cases.

A recent case finding undue influence is Estate of Lint, 135 Wn.2d 518, 535-36 (1998), which states the general rule:

A Will of a person who otherwise possesses testamentary capacity may be set aside upon a showing that a beneficiary exercised undue influence over the testator. Dean v. Jordan, 194 Wash. 661 (1938). The undue influence which operates to void a will must be something more than mere influence but, rather, influence which, at the time of the testamentary act, controlled the volition of the testator, interfered with his free will, and prevented an exercise of his judgment and choice. … influence tantamount to force or fear which destroys the testator’s free agency and constrains him to do what is against his will. Estate of Bottger, 14 Wn. 2d 676, 700 (1942). …Despite the rather daunting burden that is placed on will contestants, a presumption of undue influence can be raised by showing certain suspicious facts and circumstances. This was noted and discussed by Justice Steinert in his scholarly opinion for this court in Dean where he said:

Nevertheless certain facts and circumstances bearing upon the execution of a will may be of such nature and force as to raise a suspicion, varying in its strength, against the validity of the testamentary instrument. The most important of such facts are:

  1. That the beneficiary occupied a fiduciary or confidential relation to the testator;
  2. That the beneficiary actively participated in the preparation or procurement of the will; and
  3. That the beneficiary received an unusually or unnaturally large part of the estate.

Added to these may be other considerations, such as the age or condition of health and mental vigor of the testator, the nature or degree of relationship between the testator and the beneficiary, the opportunity for exerting an undue influence, and the naturalness or unnaturalness of the will. …

The combination of facts shown by the evidence in a particular case may be of such suspicious nature as to raise a presumption of fraud or undue influence and, in the absence of rebuttal evidence, may even be sufficient to overthrow the will. Estate of Beck, 79 Wash. 331 (1914). Dean, 194 Wash. at 671-72.

The existence of the presumption imposes upon the proponents of the will the obligation to come forward with evidence that is at least sufficient to balance the scales and “‘. . . restore the equilibrium of evidence touching the validity of the will’; ….”

B. Elements of Undue Influence.

1. In General. On the one hand, Courts have found it difficult to define undue influence, generally adopting a definition that undue influence is some type of coercive conduct aimed at destroying the testator’s free will and substituting in its place the will of another. Lint, Dean, Edmark, Ottomeier, Eubank. On the other hand, most undue influence cases show no signs of physical duress or psychological coercion by the alleged influencer . To the contrary, most cases speak of the influencer having inveigled their way into the testator’s testamentary plans, often by flattery or importunity. So, for example in Washington, the facts that give rise to a suspicion of undue influence are that:

  • The beneficiary has occupied a fiduciary or confidential relationship to the testator,
  • The beneficiary has actively participated in the preparation of the testator’s will, and
  • The beneficiary has received an unnaturally large share of the estate. Lint, Peters v Skalman.

2. Susceptibility to Influence. Courts first look at the mental and physical condition of the testator. If the testator was mentally and physically vigorous and had a mind of his/her own, undue influence will seldom be found, even if the testator was subject to importuning by the influencer and gave the influencer a disproportionate amount in the testator’s estate. If, however, the testator was physically ill, senile, under the influence of alcohol, or under some other form of physical or mental impairment, Courts will then proceed to examine the actions of any alleged influencer on the presumption that the testator was susceptible to undue influence.

Susceptibility to undue influence and testamentary capacity are different for two reasons:

  • At Execution of Will: The contestant does not have to show susceptibility to influence at the actual time of execution of the will. The testator’s weakened mental or physical condition over a long period of time before the execution is more important.
  • Degree of Impairment: The degree of impairment necessary to find susceptibility to influence is less that that required to find lack of testamentary capacity.

3. Existence of Confidential Relationship. Courts uniformly agree that the existence of a confidential relationship between the testator and the alleged influencer is a necessary element. A confidential relationship is one in which the testator has put special trust and confidence in the influencer, as opposed to holding him/her at arm’s length; examples:

  • Guardian and ward,
  • Trustee and beneficiary.
  • Agent and principal
  • Attorney and client
  • Doctor or nurse and patient.
  • Clergyperson and congregant.
  • Parent and child.
  • Husband and wife.
  • Between siblings.
  • Uncle or aunt and niece or nephew.
  • Between cousins.

4. Use of Confidential Relationship to Secure a Change in Testator’s Plans. Courts often talk about the alleged influencer actively procuring a new will. Courts will generally find a will to be a product of undue influence if the influencer:

  • Secured the attorney,
  • Attended the planning conferences between the testator and attorney, and
  • Attended the will execution ceremony.

    Or worse yet:

  • Actually prepared the will or a draft of it for the testator.

5. Testator Changed His/Her Post-Death Plans. Before Courts will find undue influence, there must be an actual change in the testator’s plans that gives the influencer an advantage over those who shared in prior plans. This most obviously occurs if the testator makes a new will in the influencer’s favor, but it may also occur if the influencer gets the testator to revoke his/her will and die intestate or to write or revoke other documents, such as deeds or trust agreements, that make changes during life that affect the testator’s distribution of property at death.

6. The Change of Plan Is Unconscionable. Courts often talk about this in terms of an “unnatural devise.” This is tantamount to saying that distribution to one’s heirs is “natural” and to the degree that a testator varies from distribution to his/her heirs, the distribution becomes more unnatural and should be viewed with suspicion and, in the extreme, are unenforceable. In this sense, an “unnatural devise” leads to invalidation of a will only when a court deems the outer limits of the testator’s personal liberty has been destroyed by the influencer’s oppressive conduct or the influencer has taken an unfair advantage of the testator’s mental or physical powers relative to the heirs for the testator’s property. Consequently, the focus of inquiry in undue influence cases is not on the mental state of the testator but, instead, on the conduct of the influencer.

By reviewing the alleged influencer’s course of conduct, a Court arrives at a determination of whether the influencer has obtained benefits from the testator by improper means, If so, then the influencer should be deprived of those ill-gotten benefits. Therefore, undue influence boils down to the situation where a testator who is susceptible to influence by others as a result of mental or physical infirmity establishes a confidential relationship with another person, and that person uses the confidential relationship to manipulate the testator’s lifetime or post-death property distribution plans to the influencer’s benefit and the change results in an unconscionable benefit to the influencer.

In Estate of Lint, the trial Court cited to Dean, and set forth the factors from the case that “‘raise a suspicion, varying in its strength, against the validity of the testamentary instrument,'” and concluded, based upon the facts it found, that “each and every one of the suspicious factors enumerated in Dean is present in the instant case. …

Given Estelle’s mental and physical condition, the fatigue and fear associated with cancer, its treatment, and the knowledge that the disease was terminal; the near-constant presence of [Christian] and his friends that he hired to look after Estelle, to the exclusion of her friends and family; and the fact that Christian enlisted the assistance of a new attorney and fired Estelle’s prior estate-planning attorney, this court finds that [Christian] exercised undue influence to override Estelle’s estate plans. Lint, 135 Wn.2d at page 537.

The Supreme Court:

  • Concluded “[I]t is apparent from the facts found by the trial court that Christian was not an object of Estelle’s bounty in 1993 and only became so in 1995 as a consequence of his concerted efforts to isolate and estrange Estelle from her family and friends and to control every facet of her life.” Lint, 135 Wn.2d at page 538.
  • Affirmed the trial Court’s conclusion that the boyfriend procured the Testator’s Will by undue influence.
  • Upheld the trial Court’s rejection of the Will to probate.

See also Estate of Kessler, 95 Wn. App. 358 (1999) & Estate of Marks, 91 Wn. App. 325 (1998), review denied 135 Wn.2d 1031 (1998), in both of which cases the Appellate Court upheld the trial Court’s rejection of the Will Contest based on undue influence. The proponents of the Will Contest in Estate of Mumby, 97 Wn. App. 385 (1999), also alleged undue influence at trial but withdrew that claim on appeal.

C. Presumptions Regarding Undue Influence.

1. Presumption of Validity and Freedom from Undue Influence. Most states presume that every will proven to be duly executed is valid.

2. Presumption of Undue Influence. Most states raise a presumption of undue influence from direct or circumstantial proof of some of the elements of undue influence. For example, in Washington, certain facts and circumstances surrounding the execution of a will can be of such force as to raise a suspicion against the will’s validity:

  • The beneficiary has occupied a fiduciary or confidential relationship to the testator,
  • The beneficiary has actively participated in the preparation of the testator’s will,
  • The beneficiary has received an unnaturally large share of the estate. Lint, Fritz, Dean, Eubank

Washington requires clear and convincing evidence against the presumption of undue influence.

D. Burden of Proof.

1. On Ultimate Issue of Undue Influence. Most states, such as Washington, place the burden of proof on the contestant to show that the will was the product of undue influence. Schafer Once the proponent has proved that the will was duly executed with proper formalities, the burden of proof then shifts to the contestant to show that the will was the product of undue influence. Smith, Eubank Unlike most other states, Washington requires the proof to be made by clear, cogent, and convincing evidence.

2. To Overcome Presumption of Undue Influence. Once the the contestant has established the presumption of undue influence, states are divided on its effect. Many require the proponent of the will to carry the burden of persuasion on lack of undue influence. Washington appears to be among them, although no recent cases have been found.

E. Summary.

Undue influence is the most commonly asserted ground for invalidated a will, deed, or trust agreement that is part of a person’s post-death distribution plan. While Courts have been unable to define undue influence, most characterize undue influence as deprivation of the testator’s free agency.

Undue influence is best defined operationally. Courts will invalidate a will, deed, or trust agreement if:

  • The person who executed the document was unusually susceptible to influence, due to:
    • Physical or mental illness,
    • Alcohol or drug addiction, or
    • Extreme old age or other debilitating conditions; and
  • The person who allegedly received post-death benefits through undue influence:
    • Had a confidential or fiduciary relationship with the person subjected to influence, and
    • Used that relationship to importune for post-death favors that resulted in an unconscionable change of post-death distribution plans in favor of the alleged influencer or some favorite of the influencer.

According to Ross & Reed:

  • Courts generally refuse to set aside wills that favor one family member against another unless proof offered to show undue influence demonstrates egregious overreaching conduct by a family member. The contestant has a low probability of success challenging a will if the contestant is a family member who was wholly or partially disinherited by the decedent in favor of another family member.
  • Courts are more or less equally likely to set side a will that disinherits family members in favor of non-family members as they are to sustain it. Courts tolerate less overreaching when the alleged undue influencer is a professional or a neighborhood “do-gooder” than they do when family members are the alleged influencers.

Other representative Washington cases:

  • Pfleghar, 35 Wash. App. 844 (1983).
  • Burkland, 8 Wash. App. 153 (1972).
  • Tate, 32 Wn.2d 252 (1948).
  • Foster v. Brady, 198 Wash. 13 (1939).
  • Barbee v. Barbee, 134 Wash. 418 (1925).
  • Tresidder, 70 Wash. 15 (1912).
  • Perry v. Wetzel, 122 Wash. 129 (1922).
  • Koppang v. Hudon, 36 Wn. App. 182 (1983).