Undue influence when creating a will, codicil to amend a will, trust or other legal instrument, occurs when the conduct of another prevents a testator (or anyone for that matter) from exercising his or her free will. The occurrence of undue influence is established by demonstrating that the testator’s testamentary disposition was caused by undue pressure, argument, or other coercive acts which destroyed the testator’s freedom of choice in the disposition of the assets of his or her estate, and is replaced by the substituted judgment/wishes of another. Litigants may characterize the circumstances as perceived or misperceived exploitation of a vulnerable individual, especially as we see a generation of baby boomers reach ages at risk for dementia and Alzheimer’s, both medical conditions best assessed by a medical doctor. Undue influence may be proven with circumstantial evidence, i.e., without direct evidence. It is necessary to demonstrate by fact that undue influence has occurred. Often the term “undue influence” in a testamentary setting is lumped with the phrases “testamentary capacity” and “competency” to make a Will or Trust. A dispute about testamentary capacity may arise in the same case as undue influence, but from the forensic psychiatrist’s point of view, the issues are different. The making of Wills vs. Trusts have different thresholds of competency and the distinction is important to understand when evaluating if susceptibility to undue influence is considered.
There are various indicia of undue influence. Those indicia include, but are not limited to, the following:
- An unnatural cutting off of any substantial bequest from the natural objects of an individual’s bounty, such as children, e.g., if one child is left the entire body of an estate and another child is provided nothing.
- Disposition of an estate which is at variance with the decedent’s intentions as expressed before and after the execution of the document in question. In other words, the testator expresses that the will (or trust) provides for “X” before the will is signed and again at some later date. However, the bequest proves to contain a different provision entirely. This situation may indicate the testator suffers from dementia and is not the victim of undue influence. A forensic psychiatrist must take into account a wide variety of evidence to form an opinion.
Note: When a testator excludes a natural heir due to a delusion about the heir, the testator is deemed incompetent to execute a will or trust.
- Relations existing between the chief beneficiaries and the decedent were such that one of the beneficiaries was provided an opportunity to control the testamentary act. This commonly occurs when one child manages all of the assets of the testator and otherwise controls the wealth and care of the testator to the exclusion of other children (child).
- The testator was vulnerable to undue influence because he/she suffered from a mental or physical condition which permitted a subversion of his or her free will. This may include a chronic physical condition or mental decline, as mentioned above and below.
I have evaluated cases in which the considerations included the side effects of medication, mentally disabling brain conditions (e.g. a brain tumor), or dementia brought on by the toxic side effects of kidney or liver damage, to name only a few. Conversely, regardless of evidence of physical causes of mental decline, the primary impetus for the testator’s behavior may prove to be caused by the behavior of another person manipulating or exploiting the testator. When assessing undue influence on a deceased testator, the medical training of a forensic psychiatrist, who is a licensed medical doctor, becomes especially relevant as medical records are often the primary evidence available.
- When the chief beneficiary of the testator also is active in procuring the execution of the instrument which provides the bounty, the question must arise whether or not undue influence was exercised.
- If undue influence is alleged against a fiduciary of the testator, the burden of proof shifts to the fiduciary to establish no undue influence occurred.
It is not necessary to demonstrate the existence of mental dysfunction in order to prove undue influence. There may be mental “weakness” (see Estate of Yale), which is probative of undue influence. This “weakness” from whatever cause is nevertheless less debilitating than the mental defect required to establish a lack of testamentary capacity. In Estate of Yale, the court held that a persuasive indicia of undue influence is a physical and mental condition of the testator “such as to permit a subversion of his freewill.” Susceptibility to undue influence may include advanced age, medical deterioration due to a progressive medical mental deterioration, and/or reliance on the beneficiary as a caregiver.
Usually, undue influence is established by circumstantial evidence and, by necessity, inferences. Generally, the existence of undue influence is not investigated until the death of the testator, at which time, of course, the testator no longer is available to testify about acts that influenced him. Rarely is direct testimony available. In the case of David v. Hermann, for example, the court inferred the settlor’s sudden negative shift in attitude toward the older daughter to be caused by the younger daughter falsely “poisoning the settlor’s mind because it [the court] could find no other rational explanation.”
It is generally held that the evidence of cumulative events are taken together in order to support a finding of undue influence; a single event is rarely sufficient as proof. Many types of circumstantial evidence may be produced which when taken cumulatively become more than the sum of their parts.
Not all influence is “undue.” Another close individual such as a spouse may influence the testator to make certain decisions in order to best provide for heirs. The influence becomes “undue” for the reasons given above.
One of the inferences for the exertion of “undue” influence is if a close or isolative relationship existed between the testator and the proponent of the changed will or trust at the time changes are entered into. When the beneficiary/caregiver isolates the testator from his/her other natural heirs, there is an index of suspicion to the psychiatrist for undue influence.
Another circumstantial fact may be a financial relationship between the “favored” beneficiary and the testator. For example, the favored beneficiary has check-writing authority and is otherwise being empowered to take over the financial affairs of the testator. Yet other example may be the receipt of a joint tenancy interest in real property even though the property was paid for entirely by the testator, or being employed by the testator’s business (or promoted if already an employee) up to and including being made an officer of the company.
Participation in the procurement, preparation, or execution of the actual testamentary document is not an essential element of undue influence. The “favored” beneficiary need not be present at the time of the execution of a disputed testamentary document to participate in the creation or execution of the document. The participation may be proven inference. The forensic psychiatrist examines such participation when assessing undue influence. When the beneficiary personally communicates with the attorney who is drawing up the testamentary instruction, this is inferential evidence for the forensic psychiatrist to consider. Other circumstances the psychiatrist considers may include the allegedly “influencing” beneficiary meeting alone with the attorney who subsequently prepares a trust or will for the testator, and/or telling the preparer what the modifications will be. Other medical evidence is when the attorney who drafts the document is also retained by the beneficiary of the will or trust; there is a suggestion of a conflict. The psychiatrist would want to know the nature of the prior relationship with the attorney, and how the testator came to choose and rely on that attorney.
Undue profit as indicia of undue influence may be considered. In Estate of Gelonese, a testamentary disposition that does not treat a descendant’s children equally is “unnatural,” “demonstrating undue benefit to one child over the other.” The question whether the proponent unduly profited by testamentary document is resolved by the terms of the testamentary document itself.
As a psychiatric evaluator, I look at the relative complexity of the instrument which is drawn and assess the testator’s mental capacity to understand the document, as reflected by either direct or indirect evidence, e.g., deposition testimony, films/videos, medical records, and testimony from disinterested parties When a testator “trusts” a favored beneficiary to tell the testator what the will or trust means, then in my opinion there is substantial room for misrepresentation and distortion. The disproportionate trust in a beneficiary when there is an exclusion of other children of the beneficiary from the testamentary document raises the medical questions of independent action versus deception and self-dealing.
Further comments on this issue are addressed in my discussion of testamentary capacity (which may or may not be linked to undue influence).
WILLS AND CODICILS TO WILLS, TRUSTS AND AMENDMENTS TO TRUSTS, BREACH OF FIDUCIARY RESPONSIBILITY, UNDUE INFLUENCE OVER A FIDUCIARY