Undue Influence: Definitions and Applications - California Courts ...

undue influence reduced from the case law of many states are: (1) susceptibility to influence, (2)
a confidential relationship between influencer and testator, (3) use of the relationship by the
influencer in an attempt to get the testator to make a change of disposition, and (4) a change of
disposition that is unconscionable. 35
In order to make showing of undue influence in Alabama, Connecticut, Iowa, Minnesota,
Nebraska, Ohio, and South Dakota, the contesting party must prove a version of these four
elements. Maryland, Missouri, North Carolina, Tennessee, Texas, Washington, and Montana
have factors in addition to the four general ones.
Wisconsin uses either a two-element test or a four-element test. Susceptibility,
opportunity to influence, disposition to influence, and coveted result comprise the four-element
test. Once the first three elements have been proven then there need only be a slight showing of
the fourth. The two-element test consists of the presence of a confidential or fiduciary
relationship between the testator and the influencer and “suspicious circumstances.” This creates
a rebuttable presumption of undue influence in Wisconsin.
Oregon also uses a suspicious circumstances test in determining whether a testamentary
instrument is a product of undue influence, which includes the following factors: “(1) whether
the challenged beneficiary participated in the preparation of the instrument; (2) whether the
testator received independent advice from an attorney in preparing the instrument; (3) whether
the instrument was prepared in secrecy and haste; (4) whether the testator’s attitude toward
others had changed by reason of his or her relationship with the challenged beneficiary; (5)
whether there is a decided discrepancy between a new and previous will of the testator and
35 Id.
52