Law of Wills, 2016A

Chapter Ten: Testamentary Capacity (Undue Influence, Duress and Fraud)
10.1 Introduction
A testator’s ability to execute a will may be negatively impacted by the actions of third
parties. The cases in this chapter involve situations where third parties attempt to manipulate the
testator in some way. The level of influence that the third party exerts on the testator varies.
Nonetheless, the third party’s motivation is to get the testator to execute a will that reflects his or
her desires instead of the testator’s wishes. The three most common types of manipulations include
undue influence, duress and fraud. Since duress is a form of undue influence, the concepts will be
discussed in the same section. Following the discussion of undue influence and duress, the chapter
includes an examination of fraud. The chapter ends with a discussion of a relatively new tort,
intentional interference with an inheritance expectancy.
10.2 Undue Influence/Duress
The law does not expect a testator to make estate planning decisions in isolation. Given
family dynamics, it is understandable that the testator may discuss his or her estate planning ideas
with family members. In addition, it is not uncommon for a testator to have a closer relationship
with some family members than he or she has with others. Thus, the testator is bound to be
influenced by the opinions of some members of his or her family. Under the law, some influence is
acceptable; problems occur when the testator is unduly influenced. The legislatures and the courts
have not provided a bright line rule for determining how much influence is too much. The test is
whether such control was exercised over the mind of the testator as to overcome his or her free
agency and to substitute the will of another person so as to cause the testator to do what he or she
would not have done had the influence not existed.
10.2.1 Presumption of Undue Influence
Normally, the person who is challenging the will has the burden of proving that the will was
a product of undue influence. This changes if a presumption of undue influence arises. The person
contesting the will can establish a presumption of undue influence if he or she is able to show (1) the
existence of a confidential relationship; (2) the persons with the confidential relationship received
the bulk of the estate; and (3) the testator had a weakened intellect. All three of these elements are
subjective and evaluated on a case-by-case basis. If the court finds a presumption of undue
influence, the burden shifts to the proponent of the will. That person has to overcome the
presumption by providing clear and convincing evidence that he or she acted in good faith. A
presumption of undue influence may also arise when an attorney receives a bequest under the terms
of a will that he drafts unless he or she is closely related to the testator.
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