The Protective Doctrine of Undue Influence

Publication year2009
38 Colo.Law. 75
Colorado Bar Journal

2009, June, Pg. 75. The Protective Doctrine of Undue Influence

The Colorado Lawyer
June 2009
Vol. 38, No. 6 [Page 75]

Articles Trust and Estate Law

The Protective Doctrine of Undue Influence

by James R. Walker

Trust and Estate articles are sponsored by the CBA Trust and Estate Section. Topics include trust and estate planning and administration, probate litigation, guardianships and conservatorships, and tax planning.

Coordinating Editors

David W. Kirch, of David W. Kirch, P.C., Aurora--(303) 671-7726,; Constance D. Smith, of Rothgerber Johnson & Lyons LLP--(303) 623-9000,

About the Author

James R. Walker is a partner of Rothgerber Johnson & Lyons

In March 2009, the Colorado Supreme Court resolved longstanding evidentiary problems involving undue influence claims in its opinion in the case Krueger v. Ary.

As Colorado's preeminent court, the Colorado Supreme Court establishes, modifies, and clarifies core trust and estate law principles. In March 2009, the Court clarified Colorado's undue influence law. In Krueger v. Ary,(fn1) the Court held that once a presumption of undue influence is effectively rebutted, the presumption does not continue in the case and the facts that established the undue influence presumption are not established as a matter of law.

In Krueger, the Court performed its clarifying role in the context of the pattern Colorado Jury Instructions (CJI). Before reviewing the Krueger decision and its clarification of a decades-old evidentiary problem,(fn2) it is useful to review the undue influence doctrine.

The Undue Influence Doctrine

Undue influence is an ancient protective doctrine.(fn3) The judicially created doctrine invalidates donative transfers that donors make involuntarily due to third-party coercion. The doctrine protects susceptible donors against third-party acts that take advantage of the donor's age, inexperience, dependence, or physical or mental disability.

Undue influence is the most common donative transfer challenge. The elements of undue influence include: a donor susceptible to influence;(fn4) the existence of a confidential relationship between the victim and the influence(s);(fn5) use of the confidential relationship to secure a change in the donor's dispositive plans;(fn6) and an unconscionable change in the donor's dispositive plan.(fn7)

As with most will contest challenges, direct evidence seldom exists. For many decades, courts have allowed contestants to prove undue influence through circumstantial evidence, often aided by presumptions.


Presumptions are used in court proceedings to help collect evidence and bring such evidence to the fact finder's attention. The courts and state legislatures from time to time make changes to these procedures, which affects how the evidence is presented and evaluated.

The undue influence presumption is grounded in established case law and reflections of current public policies. For example, in Lamborn v. Kirkpatrick,(fn8) the Court stated:

We deem it proper to attach illicit cohabitation . . . [a] moral basis for requiring an affirmative showing against the existence of undue influence from one who is shown to be guilty of illicit cohabitation. . . . The unlawful intimacy of this meretricious relation between a testator and a beneficiary who is not related to him by blood or marriage usually assumes a clandestine form and, after the testator's death, would almost invariably render such undue influence as results therefrom incapable of proof except by the aid of the presumption. . . .(fn9)

Under the approved CJI, this presumption should continue in the case even after the introduction of some rebutting evidence.(fn10) The Colorado Supreme Court's Committee on CJI inserted this instruction with knowledge of the competing legal authorities over how these presumptions historically were treated by Colorado's appellate courts.(fn11)

Colorado's Historical Approach to the Undue Influence Presumption

The Colorado Supreme Court previously endorsed a policy-based approach to the presumption of undue influence.(fn12) In the 1946 Dittbrener v. Myerson(fn13) decision, the presumption was framed as follows:

[W]here a confidential relationship exists, the law presumes in favor of the servient party against the dominant party (1) that the relation placed the dominant party in a position to exert influence and dominion over the servient party; (2) that such influence and dominion operated upon, and procured, the transaction; and (3) that the influence was improper and unfair, or an undue influence.(fn14)

In 1949, the Colorado Supreme Court expressed a view that the presumption

extends to every possible case in which a fiduciary relation...

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