Contesting a Will by Undue Influence

Wills is one of the fourteen subjects that is fair game for the MEE, or essay section of the UBE. Bar examiners often ask about the various ways in which to challenge a will. In the interest of keeping this post a manageable length, I will focus only on undue influence. Make sure to study the alternatives such as duress, lack of testamentary capacity, improper execution and fraud as well.

Who can challenge a will? No, you cannot just claim a celebrity’s will invalid because they did not leave you their house in the Hamptons. There are rules, people. Only interested parties can contest a will. Generally, interested parties fall into three categories. First, heirs. Heirs are those who would inherit under the relevant state’s intestacy statute should the will be declared invalid. Under most states' intestacy statutes, close family members inherit even without a will. For example, your widowed mother dies. Her will leaves everything to her new nineteen-year-old caretaker she hired two weeks ago. You, as the child, have standing to challenge the validity of the will. However, her best friend (unrelated to the family), cannot. Beneficiaries of prior and subsequent wills may have standing as well, but this varies by state.

Generally, the contestant has the burden of proof. In the example discussed above, you would be responsible for convincing the court of the will's invalidity. The caretaker does not need to defend the will's validity. A will can be voided in its entirety or in part if a particular provision is found to be procured by undue influence.

So, what does a contestant need to show to invalidate a will by undue influence?

· The presence of undue influence

· The influence overcame the testator’s free will. Here, the testator’s free will is decimated to the point where the will, in whole or in part, is a product of the influence. Pestering is not enough. The testator can be led, but not driven.

· The undue influence caused the donor to make a donative transfer that the donor would not otherwise have made.

Courts will consider the following non-exclusive factors as evidence for undue influence. The following are not enough to prove undue influence, the burden discussed above must be satisfied.

· The will left property in an unusual or unexpected way. For example, close family members were left off in favor of the alleged influencer.

· How involved the alleged influencer was in drafting the will.

· How vulnerable was the testator to the alleged influencer?

· The degree of access the alleged influencer had to the testator (i.e. the testator went to church twice a week for ten years to confide in their priest). Was the influencer recently added to the testator's bank accounts? Did the testator become more isolated from family members in favor of spending time with the influencer?

· Confidential or fiduciary relationship between the testator and the influencer (see below discussion)

In your analysis, mention possible counterarguments and consider if the contestant’s argument may fall short of the required burden discussed above. As these analyses tend to be very fact-specific, put all of the facts provided to good use on exam day. In real-life, cases like this would require extensive interviews, depositions and probably medical opinions.

As previewed above, the law also allows for a presumption of undue influence if certain confidential relationships exist. Such a presumption arises when the following elements exist:

· There was a confidential relationship between the testator and the beneficiary. This analysis is fact-intensive but generally requires that the testator relied heavily on the influencer. Examples would be an accountant, religious advisor, lawyer or caretaker. The law wants to protect situations where, for example, a caretaker pressures the testator to leave them substantial property and because the testator is dependent on them for survival, they have no choice but to acquiesce. Remember, nagging alone is not enough.

· The influencer was active in procuring the will

If you can show both of the factors above, the burden shifts to the will’s proponent (in the example above, the caretaker)