KNOW IT WHEN YOU SEE IT
Supreme Court Justice Potter Stewart wrote in an opinion on a first amendment, free speech issue that became famous, but is so commonplace and true about life. Specifically he said that some things are hard to define, but he would know he if he saw it. That same sentiment holds true for so many things in life and the law. Many times certain phrases, concepts or principles can be reduced to a canned or trite definition but still better expressed as the kind of thing that you know it when you see it. The principle of undue influence of a testator creating or amending a will is the type thing that could best be defined as such. For certain courts and legislatures created any number of definitions, but life has a way of finding another set of circumstances that do not fit any such definition but is undue influence just the same. Indeed New York state’s standard jury instructions on the issue of undue influence and duress comes from a case that specifically states that undue influence is difficult to define. Despite the limitations, a good working definition is when the testator was unable to exercise independent action and the person exercising the influence made the person do something against their free will and desire. Charm, ties of affection and past kind acts are not enough. Instead the actor must engage in an act of coercion to make the actor do what they would not otherwise do. Some Courts even broke the definition of undue influence down even further, by stating that it can even be found when a testator believes what the influencer wants them to believe, without even knowing that the influencer asserted their will over them.
There are certain hallmarks that are common with issues of undue influence.
- Unnatural testamentary gift; and
- Opportunity to exert undue influence; and
- Weakened mental state of the testator; and
- The beneficiary actually engaged in an effort to overcome the first decision of the testator.
With respect to the first hallmark, that means that the testator gave a portion of his/her estate to someone who would not normally be considered as someone who should inherit the testator’s wealth. If, for example, the testator’s therapist who nobody in the family met and who is not related would certainly seem to be an unnatural person to bequeath something to in a will. Another example would be if a testator left all or a large portion of their estate to one person, without valid reason. If a wealthy parent leaves all of his/her estate to their child with special needs when the other child is already financially wealthy, there is nothing untoward about this decision. As for the second, there must be an actual opportunity for the influencer to exert their undue influence over the testator. If a strong willed child is never left alone with his/her parent, there can not be an inference that he/she exerted such undue influence over the parent. As for the third element, undue influence is not likely to occur over a strong willed individual. They can resist any attempts at coercion by even their closest of companions and family members. Finally, the influencer must actually engage in such attempts to overcome the will of the testator and have them change their mind.
There are certain circumstances, however, no matter how clearly the testator was thinking and when no undue influence existed in reality that a probate Court will presume undue influence. This will occur whenever someone leaves money or property to their attorney and will draftsperson. A probate Court strongly disfavors such actions and will examine such dispositions under a microscope. It is always best to let another attorney draft the will.