Law of Wills, 2016A

(a) Prior to executing her will, Karen was diagnosed with bipolar disorder.
(b) Prior to executing his will, Bryon was blind in one eye and suffering from end-stage renal failure.
(c) The court appointed a guardian to handle Daniel’s personal and business affairs prior to the
execution of his will.
(d) Prior to executing her will, Wanda had a stroke.
3. In order to determine if the alleged influencer had the opportunity to influence the testator,
courts look at the amount of time that the person spent with the testator, the person’s proximity to
the testator, and the nature of the relationship between the person and the testator. The opportunity
element is difficult to evaluate. In order to have the opportunity to influence, the person is usually
spending a lot of time with the elderly person providing physical and emotional care. On the other
hand, the person who is contesting the will is typically the person who has spent the least amount of
time with the testator. From a public policy perspective, we should want to encourage the former
and not the later behavior.
4. In order to satisfy the disposition element, the contestant has to show something more than the
fact that the alleged influencer had a desire to obtain a share of the testator’s estate. The disposition
necessary for a finding of undue influence implies that the alleged influencer was willing to do
something wrong or unfair to insure that he or she receive a bigger share of the estate.
5. Aileen and Lee were married and had two children, Colin and Frances. After Lee died, Colin
moved in with Aileen to help her put his father’s affairs in order. Frances was estranged from her
parents, so she did not attend Lee’s funeral. Colin took Aileen to see an attorney who had done
work for him in order to have a will prepared for her. At that time, Aileen exhibited signs of
dementia. She had begun to forget and exaggerate. The attorney thought that Aileen was paranoid
and somewhat delusional, but concluded that she had testamentary capacity because she knew the
objects of her bounty and was oriented as to time and place. Aileen told the attorney that Frances
had stolen horses from her and had driven away her hired hand. She stated that she did not want
Frances to receive any of her property. Aileen also told the attorney that the local sheriff and
everyone in her county were on drugs. The attorney prepared a will leaving Aileen’s entire estate to
Colin. When Aileen died, Frances filed an action contesting the will. What is the possible outcome
of the case?
10.2.3 Duress
Duress is aggressive undue influence. In these cases, the wrongdoer threatens to perform or
performs a wrongful act that forces the donor to make a donative transfer that the donor does not
want to make. These types of cases are relatively rare. The coercive action may be physical or
mental. For example, a child may threaten to place an elderly parent in a nursing home if the parent
does not include certain provisions in his or her will. In extreme cases, the person seeking to inherit
may physically assault the testator to force the testator to comply with his or her demands.
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