Has the court overstepped its boundaries? What is proof of undue influence? Who does have

influence on the testator if not the beneficiary? the agent? the attorney? the doctor?

the clergyman? the fiancé? The court violates the essence of a will in the process of

defining what it believes the testator intended.

>From the time of the earliest courts, owners of properties, whether real or personal,

have had the right to determine to whom the property should go at the time of the owners’

death. As with all transactions affected by human nature, the disposition of that

property is subject to various influences, from greed to misunderstanding.

According to websites from both Lucas and Shelby Counties in Ohio, the first probate

court emerged in Massachusetts, in 1784. Richland, South Carolina, claims to have had a

probate court in 1670. Previous to that, probate was dealt with by an ecclesiastical

judge or the English Courts of Chancery. These courts presided over matters such as the

probate of wills, administration of estates and guardianships. Common folk were not as

well educated as in contemporary society and were, pretty much, governed by their local

churches.

With the establishment of the Northwest Ordinance around 1787, the first probate judge of

the Ohio territory was named. The Ohio Constitution, 1802, named the Court of Common

Pleas as the authority in probate matters. In 1851 each county had a separate probate

court; the Constitution was amended; and the present day system evolved. So it went in

all states as they were formed out of the territories, throughout the history of the

United States.

“To be undue influence in the eye of the law there must be – to sum it up in a word –

coercion … It is only when the will of the person who becomes a testator is coerced into

doing that which he or she does not desire to do, that it is undue influence.” Lord

Justice Hannen, Wingrove v. Wingrove, 11 Prob Div. 81 (1885)

In order to strike off in the direction of analysis of the courts’ interpretation of

undue influence we must first lay groundwork by defining what constitutes a valid will.

Specifically, when a will is made in California, there are certain elements necessary for

the will to be valid in order to be probated.

It must be in writing. There is no provision in most states for a will to consist of

word-of-mouth bequests unless made in an extreme situation, i.e. close to death, and

there are corroborating witnesses present. Additionally, in such events, only personal

property may be transferred. The will may be made in the testator’s own hand. This is an

holographic will. The will may be written on any medium, and those made in crayon or ink

have held up in court.

The will must be signed by the testator. The signature might simply be an ‘X’ if it was

made in front of the witnesses who will also sign the will, attesting the signature of

the testator. Wills have held in court with the word “Mom” used as a signature.

Two witnesses, or three depending on the state, are required to validate the will. These

people must be informed that the document they are witnessing is the last will and

testament of the testator. It is not a requirement that they have any knowledge of the

contents of the will in order to witness it. They are merely affirming that the testator

was of sound mind, and intended for the document to dispose of real or personal property,

when the will was executed. There are no age requirements for the witnesses. However, the

witnesses must be mentally competent.

There is also a requirement for publication. This consists of the testator verbally

declaring, to the witnesses, that the document they are signing is his or her last will

and testament.

The testator must have reached the age of eighteen in California and in most states. A

few states declare the legal age at twenty-one.

The testator must be of sound of mind when making the will. That person must have the

comprehension of the extent of the estate being given, an grasp of the plan of

disposition of that property, and a comprehension of the natural objects of his or her

bequests.

The will must reflect the intentions of the maker. Here is the entry for the desires of

another person as to the disposition of certain property. Undue influence may be inferred

if the court finds the legatees are not of a logical, naturally-assumed lineage, if there

is a legatee who would receive a lion’s portion after having established a short-lived,

close and confidential relationship with the testator, or if a legetee participated in

the making of the will. If there is sufficient evidence that the will does not meet the

standards itemized above, or there is evidence of undue influence, the will may be

invalidated.

The nature of undue influence can be defined as “the amount of pressure which one uses to

force someone to execute a will leaving assets in a particular way, to make a direct gift

while alive or to sign a contact. The key element is that the influence was so great that

the testator (will writer) donor (gift giver) or party to the contract had lost the

ability to exercise his/her judgment and could not refuse to give in to the pressure.

Evidence of such dominance of another’s mind may result in invalidation of the will, gift

or contract by a court if the will, gift or contract is challenged. Participation in

preparation of the will, excluding other relatives being present when the testator and

the attorney meet, are all evidence of undue pressure, and an imbalance or change in

language which greatly favors the person exercising the influence is a factor in finding

undue influence.”1

The elements of undue influence are the susceptibility of testator/donor to such

influence, the exertion of improper influence, and submission to the dominating party.2

There is a common pattern to cases which expose undue influence. Essentially, they are

“(a) a physically weak or psychologically vulnerable testator together with (b) active

participation in the procuring of a will by the beneficiary and (c) unnatural profits by

the beneficiary.”3

In De Laveaga,4 the testatrix had lived with her sister and brother-in-law for many

years. She was mentally retarded and depended on them for any and all decisions

concerning her business affairs. The court found in favor of the contestant , the brother

of the testatrix, on the grounds of unsoundness of mind and undue influence stating: "The

evidence is amply sufficient to sustain the finding of undue influence. Of course

there can be no claim that the evidence does not sufficiently show the relation of trust

and confidence between the deceased and the Cebrians, and the complete and perfect

control of the deceased by them. There was certainly sufficient proof of interest and

opportunity. The claim of learned counsel in this regard is that there was no proof that

any undue influence was brought to bear directly upon the testamentary act. It is well

settled that 'undue influence, ... must in order to avoid a will destroy the free agency

of the testator at the time and in the very act of the making of the testament. It must

bear directly upon the testamentary act' (Estate of Higgins, 156 Cal. 261 [104 P. 8];

'there must be substantial proof of the pressure which overpowers the volition of the

testator at the time the will was made.' (Estate of Ricks, 160 Cal. 461-462 [117 P.

537].)

There are often instances in which a relative or child of the deceased feels slighted by

the will that was submitted to probate. In the case of Burke v. Burke,5 the testator

lived with his first wife 53 years until she died. Shortly after that, he moved to his

home town, then married his second wife. He died within a month of their nuptials. During

that time, he executed a will leaving all of his estate to his new wife. As there was

considerable real property included, which the children of the first marriage felt should

have been theirs, the will was contested on the grounds of undue influence and lack of

testamentary capacity.

Two policies are at odds before the court in this case. First, the court was striving to

carry out the wishes of the deceased as outlined in his will in spite of their seeming

unfairness. And, from a second perspective, the burden of proof on the contestant in such

a case is minimal in a situation where undue influence is suspected coupled with the

unnatural disposition of property and questionable testamentary capacity. In this case,

the court had evidence that the second marriage was "a lately developed and comparatively

short period of close relationship" between the testator and the principal beneficiary.

Belcher v. Somerville, Ky., 413 S.W.2d 620, 622 (1967).

Evidence of undue influence was found in the beneficiary having participated in the

making of the will, and evidence of the testator’s mental capacity being diminished by

alcohol coupled with reports of hallucinations. The court noted, “There was evidence,

which the jury could have believed, of other "badges" of undue influence, including a

will arguably unnatural in its provisions, as well as participation by the beneficiary

in the physical preparation of the will (which was drawn up by Lexie's lawyer, and in her

presence). There was also at least some evidence of mental incapacity in the form of

excessive alcoholism and hallucinations. Burke v. Burke, supra.

The Kentucky Court of Appeals found for the appellees; the children of the deceased.

Evidence presented was enough for the Appellate court to affirm the finding of the trial

jury. The beneficiary of the will was a person who was not known to the deceased for any

appreciable amount of time; had participated in the making of the will; and the testator

was suffering from hallucinations.

In Re the Estate of Carmen Corrine Herbert,6 A young Canadian surfer and student, 26 year

old Hanno Soth, managed to insinuate himself into the life of an 86 year old woman to the

extent that he stood to inherit $1.5 million from her estate. The court heard evidence

regarding the filing of a will with “unseemly haste” within 24 hours of her death;

doctors’ and neighbors’ reports of her diminished mental capacity; and his influence in

and control of her business affairs and his participation in the making of her will.

“Soth managed Carmen's financial affairs from December 1989 until the time of her death.

For example, Carmen executed a general power of attorney in favor of Soth on December 18,

1989. Soth organized Carmen's bills on his computer, issued computerized checks to pay

them, and was authorized to buy, sell, and withdraw funds and securities on her behalf.

Soth sought legal advice for Carmen and assisted her in attending doctor visits and

taking prescribed blood pressure medication, in addition to accepting her handwritten

notes explaining her desire to stop taking her medication and acceding to those desires.

Soth also drafted the 1989 Will for Carmen, was present when it was executed at the

Kaimuk Branch of First Hawaiian Bank, and was named as the personal representative and

residuary legatee of the 1989 will, potentially receiving over $1.5 million dollars.” In

re Estate of Herbert, supra.

“…friends believed that Soth, who showered Herbert with attention during the final two

years of her life, schemed to insinuate himself into her affairs, and then took advantage

of her failing memory and diminished capacity to cut off the church and put himself into

her will, trial records show.” Ian Y. Lind, 2000 Honolulu Star-Bulletin, October 10,

2000. Available: Http://starbulletin.com.

The court found for the petitioner, First Church of Christ Scientist, in the jury trial

and again for the appellant, First Church, when the matter went to the Hawai’i Court of

Appeals. Soth took the matter to the Hawai’i Supreme Court, which also agreed with the

trial jury’s decision. The 1989 will was not admitted to probate. In this situation, all

the necessary factors were present; Ms. Herbert was declared to be suffering from

short-term memory deficit and mild dementia by her doctors, she was in what was seen as a

romantic relationship with Soth during the last two years of her life; and he actually

drafted the 1989 will that she signed just before her death.

Coercion is the practice of compelling a person to involuntarily behave in a certain way

(whether through action or inaction ) by use of threats, intimidation or some other form

of pressure or force. Coercion may typically involve the actual infliction of physical or

psychological harm in order to enhance the credibility of a threat. The threat of further

harm may then lead to the cooperation or obedience of the person being coerced.

The term is often associated with circumstances which involve the unethical use of

threats or harm to achieve some objective. Coercion may also serve as a form of

justification in logical argument. “Libertarians typically define coercion as any use

of physical force, the threat of such, or deception (fraud) that alters the way an

individual would use his person or property if those elements were not present. It is

regarded that any actions sicthat is not subject to the influence of any of these

elements is voluntary.” The Concise Law Encyclopedia. Available Online

http://www.thelawencyclopedia.com. 2004.

The estate of L. Ron Hubbard, of Scientology fame, was passed to unnatural devisees

rather than to his wife and children. There is speculation that LRH’s last will was

signed while he was under the influence of a psychotic drug. His regular physician was in

attendance during the last months of his death; although, not physically present at the

last days. His trusted companions were out of town and unavailable on those last days as

well. Finally, LRH had signed a document forbidding an autopsy. The drugs in his system

were found through the only procedure permitted by that document, a blood test.

Speculation points to the influence employed by David Miscavige, who took over the Church

of Scientology, contrary to the previously known wishes of Hubbard. In the last few years

of his life, Hubbard was sequestered away from the general membership at an enclave in

the desert. It is believed that during these years, psychotic drugs were administered to

him in an effort to control his estate. Many high ranking officials of the First Church

believed they knew how the property, as well as control of the church itself, would be

disposed.

Although there are several objections in today’s society regarding the death of Hubbard,

the court had no recourse except to allow the 1986 will to be probated. There are in

existence, copies of those wills executed before. The testator’s wishes were entirely

different from the final outcome. But the final document was correctly executed and

therefore passed into probate.

There are, of course, instances in which the testator needs the advice of a counselor.

Perhaps that person has no money to visit an attorney or simply has no trust in

attorneys. In such cases, the next choice would be someone close in whom the testator has

a trust. Perhaps this is a close companion; a companion of some several years or even

some shorter time. So the court looks for evidence of what it calls a confidential

relationship. This is commonly an unequal relationship in which one party dominates the

other. However, this domination might well be justified. Restatement, Second, of

Contracts § 177 (1979) defines the dominated person as one who is “under the domination

of another or one who is justified, by virtue of his relation with another in assuming

that the other will not act inconsistently with his welfare.”

Incapacity, as in DeLaveaga, above, is one situation in which a testator would have need

of assistance in matters of everyday life. How more in the exercise of disposing of the

property of the testator?

Perhaps the advice is not sought but given anyway. There are many relationships in which

this might be the case. The court has given a wide berth to such instances. "One may

request or even importune and entreat another to execute a favorable dispositive

instrument, but unless the importunities and entreaties are shown to be so excessive as

to subvert the will of the marker sic they will not taint the validity of the

instrument with undue influence."7

In Curry v. Curry, typical husband-and-wife type of communication was shown. Was the

court now telling us how to live our private lives? Of course it’s influence; influence

of the very intimate and personal kind. But, was it undue?

The court notices that the husband and wife did not live together at a time when she was

under the medical care of a cardiologist. Would this translate to mean that the influence

must be face to face? On the one hand, the court noticed that the husband and wife

conferred almost daily concerning the business they held in common, and that they spent

time together on weekends. The court determined that because they were not living

together on a daily basis there was no opportunity for undue influence.

The Appellate Court reversed jury’s decision that there was a “great weight” of evidence

that the wife did not unduly influence the husband in the making of his will. Moreover,

the court found no evidence whatsoever that the deceased was in any way incapacitated to

the point that his wife could have dominated him as regards to the making of his will.

Finally, there was no evidence that the deceased would have distributed his property any

differently than he had.

In a case in which the testatrix was not capable of making her own business decisions,

and her sister and brother-in-law ;made them for her, the court determined that there was

no influence brought to bear that could be considered out of the ordinary.

In the case where evidence showed the beneficiary had interferred in the affairs of the

testator and profited after a short term relationship, the court found for the plaintiff.

Again, in a case where the beneficiary was proven to have taken control of the affairs of

the testatrix, the court found the will could not be probated.

Finally, in the situation where the testator was held almost captive in his last years

and subjected to drug addiction, the court found the will to be false.

So, here we see that the courts have made acceptable rules with the interest of the

deceased as their focus. If enough evidence is available to show that a beneficiary has

imposed his or her will on the testator, the court will throw out the will and matters

will pass according to the regulations of the state. Even the relationship between

husband and wife may be scrutinized. If there is a hint of impropriety undue influence is

presumed and the burden of proof is placed upon the beneficiary.

1 Wikipedia, The Free Encyclopedia. Wikimedia Foundation, Inc. Available Online

http://en.wikipedia.org.wiki/Undue_influence. 15 February 2006.

2Gifis, Steven H. Law Dictionary. 3rd ed. Barron’s Educational Series, Inc.. 1991. New

York.

3 Nievod, Abraham, PhD., J.D. Undue Influence in Contract and Probate Law. ICSA, Inc,

1977-2005. Available: Online

http://www.csj.org/infoserv-articles/nievold-abraham-undue-inf-law.html

4 In re Estate of De Laveaga, 165 Cal. 607 [133 P. 307]

5 BURKE v. BURKE, 801 S.W.2d 691 (1991)

6 In Re Estate of Carmen Corrine Herbert,

7 Curry v. Curry, 153 Tex. 421, 428, 270 S.W.2d 208, 212 (1954)

R. Ann Bliss

Law 34