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

continuity of purpose running throughout former wills indicating a settled intent in the
disposition of his estate; (6) whether the disposition of the estate is such that a reasonable person
would regard it as unnatural, unjust or unfair; and (7) whether the testator was susceptible to
undue influence. 36
In Nevada, a presumption of undue influence is created where there is a confidential
relationship between the alleged influencer and the testator, the alleged influencer actively
participated in the preparation of the testamentary document, and the result is unnatural or
unduly favors the alleged influencer. 37
The presumption then shifts the burden of proof to
alleged influencer to show that the absence of undue influence was more probable than its
existence. 38
At trial an examination of the totality of circumstances is essential. Susceptibility to
influence will be an important factor, as well as physical and mental condition, social condition
(including whether the testator was isolated or had access to unbiased advice, as well as legal
counsel), significant changes in spending or lifestyle, and who took control of the actual disputed
document after it was executed. 39
In North Carolina, the court found no undue influence where the testator was old and
suffered from loss of memory and the proponent of the will helped the testator with her affairs,
drove her to the attorney to make the will, and was present at the meeting. The proponent was a
beneficiary of the will but not the testator’s own son or two grandchildren. The testator had also
36 Ramsey v. Taylor (2000) 166 Or.App. 241.
37 In re Estate of Peterson (1961) 77 Nev. 87, 95.
38 Id.
39 Dustman, Karen Dale, A Primer on Undue Influence: From Presumption to Proof, Nevada Lawyer, April 2007.
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