Chapter C. Undue Influence
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C.1. Elements
Second only to mental incapacity as a common ground for contest of a will is the allegation of undue influence exerted against a testator. A will procured by undue influence is invalid; but undue influence is actually quite a narrow concept that is often asserted but seldom established.214
Undue influence must be just that—undue. Influence over the testator exercised by or for a beneficiary is not undue unless it overcomes the testator's free will and substitutes for it the will of the person exercising the influence.215 As long as the testator remains a free agent and is not acting under some irresistible restraint or compulsion, the testamentary disposition is valid.216 Although it has been said that to be undue, "influence must place the testator in the attitude of saying, It is not my will, but I must do it,'"217 this is a somewhat misleading statement. There need be no actual physical or mental duress, and in fact there is seldom
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such duress in evidence. As will be seen, a weak and susceptible testator may be taken advantage of and unduly influenced without ever realizing that such has occurred or feeling any actual pressure or constraint. The testator may become convinced that what he or she is doing represents his or her own will and desire, when in fact it does not. Thus such tactics as convincing a feeble testator of the enmity of relatives, while denying access to them or to other independent advice, if they lead to the "yielding of a subservient mind," will be considered undue influence.218 And if the testator is kept from realizing the true nature or content of the document signed, although this also might come under the heading of fraud in the execution,219 the courts have commonly considered it as undue influence.220
Of course, there are cases in which there is direct evidence of a testator's having executed a will contrary to his or her express wishes at the time, simply to avoid either physical or psychological pressure then being exerted. That is, the testator acquiesced in the disposition to obtain either peace or safety221 But such cases are relatively rare. Most often if a will is overturned it is on the basis of circumstantial evidence, and the precise means by which the testator's free will was overcome or whether he or she even realized that it was overcome are never to be known.222
As already indicated, influence over the testator is not in itself proscribed. It is, in fact, recognized that many forms of influence, although very persuasive and difficult for the testator to resist, are perfectly natural and proper, if not inevitable in the circumstances of life. Although this is especially true of influence exercised by a child or other close relative,223 the acts of persuasion of persons other than close relatives may also be influence that is not undue.
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It is not improper to advise, to persuade, to solicit, to importune, to entreat, and to implore. Hopes and fears and even prejudices may be moved. Appeals may be made to vanity and to pride; to the sense of justice and to the obligations of duty; to ties of friendship, of affection and of kindred; to the sentiment of gratitude; to pity for distress and destitution. It is not enough that the testator's convictions be brought into harmony with that of another by such means. His views may be radically changed, but so long as he is not overborne and rendered incapable of acting finally upon his own motives, so long as he remains a free agent, his choice of a course is his own choice, and the will is his will and not that of another.224
Although it has been stated several times that there must have been an undue influence "at the time of the testamentary act,"225 it is equally clear that the overt acts constituting the influence need not have been performed at the time of the will's execution as long as influence previously acquired continued to operate at that time.226 Of course, actions by the beneficiary that occurred after the will in question was executed will not be sufficient to upset the will.227
The favored beneficiary need not have exerted the influence directly, it being sufficient that some third party did so on the beneficiary's behalf.228 The court has also indicated (in dictum) that such a third party need not have been acting with the knowledge or consent of the beneficiary.229 Although this may yet be an open
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question in Washington, if we are to avoid either unjust enrichment or a distortion of the testator's true intent, the result should turn on whether the testator was unduly influenced, not on whether the named beneficiary was innocent. If this was not the true will of the testator, the beneficiary should not take 230
C.2. Proof of Undue Influence
C.2.a. Circumstantial Evidence; the Dean v. Jordan Analysis
Although it certainly is true that undue influence is not susceptible of precise definition and must depend heavily on the facts of each case,231 the courts still purport to rely on precedent and on the fact patterns in previous cases in deciding whether a course of conduct should or should not tip the scales in favor of undue influence and rejection of the will. There is a general recognition that undue influence will seldom be proven by direct evidence of overt acts and that the court almost always must rely on circumstantial evidence.232 In refusing to find undue influence, courts have, on occasion, referred to a lack of direct evidence of such influence having been exerted.233 However, this can mean only that the circumstantial evidence was not strong enough to overcome the presumption of the will's validity,234 and thus, lacking any direct evidence of undue influence, the will must be upheld. The real dilemma was recognized by the court in In re Soderstran's Estate.235 Having alluded to the lack of direct evidence of undue influence,236 the court conceded that circumstantial evidence may be the only evidence of undue influence available to a contestant; but it also
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recognized the difficulty facing the proponent who must prove the negative proposition of lack of undue influence, and the resulting need for clear, cogent, and convincing evidence on the part of the contestant.237
Given that circumstantial evidence of undue influence is relied upon almost of necessity, the courts have developed a series of tests for the kinds of circumstances that bespeak (and may lead to a presumption of) undue influence—what one court referred to as the "seven critical signposts" of undue influence.238 These seven factors derive from the often-quoted statement of Chief Justice Steinert in Dean v. Jordan,239 still the principal Washington authority on the subject of undue influence. Having defined undue influence as an interference with the free will of the testator, preventing the "exercise of judgment and choice,"240 the opinion continued:
Nevertheless certain facts and circumstances bearing upon the execution of a will may be of such nature and force as to raise a suspicion, varying in its strength, against the validity of the testamentary instrument. The most important of such facts are (1) that the beneficiary occupied a fiduciary or confidential relation to the testator; (2) that the beneficiary actively participated in the preparation or procurement of the will; and (3) that the beneficiary received an unusually or unnaturally large part of the estate. Added to these may be other considerations, such as [4] the age or condition of health and mental vigor of the testator, [5] the nature or degree of relationship between the testator and the beneficiary [6] the opportunity for exerting an undue influence, and [7] the naturalness or unnaturalness of the will. The weight of any of such facts will, of course, vary according to the circumstances of the particular case. Any one of them may and variously should, appeal to the vigilance of the court and cause it to proceed with caution and carefully to scrutinize the evidence offered to establish the will.
The combination of facts shown by the evidence in a particular case may be of such suspicious nature as to raise a presumption of fraud
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or undue influence and, in the absence of rebuttal evidence, may even be sufficient to overthrow the will.241
These factors did not originate with the Dean court, of course; they merely represent its interpretation of Washington law as it had developed to that date.
The following discussion analyzes the seven Dean factors individually, with examples of what Washington courts have considered to fall within each. Included also are cases prior to Dean that discussed these same factors or their equivalent in earlier formulations. One must keep in mind, however, that what result a court might reach based upon finding the presence or absence of one or more of the seven factors will vary greatly with the court's view of the merits of the individual case and of the parties' burden of proof in general.
C.2.a.(1) "Confidential or Fiduciary Relationship"
Presence of a "confidential or fiduciary relationship," although never by itself a determinant of undue influence, is probably the most significant single circumstantial factor. Generally the opinions have not distinguished between "confidential" and "fiduciary" in this context, although of course for other purposes they may be quite different.242
Note that a court is free to consider any other facts that bear on the question of undue influence, whether or not they are included in the Dean list. See In re Estate of Haviland, 162 Wn.App. 548, 568, 255 P.3d 854 (2011).
Estate of Haviland illustrates the possible overlap between undue influence and the "slayer or abuser" statute, Chapter 11.84 RCW, discussed in Chapter 1. Not only was the decedent's spouse accused of exercising undue influence, but the court was also asked to declare her a financial...
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