Section 17.25 Undue Influence

• Library: Estate Administration 2014 Supp

1. (§17.25) Undue Influence

Undue influence has been defined as that influence that amounts to such force, coercion, or over-persuasion that it destroys the free agency and willpower of the testator. Maurath v. Sickles, 586 S.W.2d 723 (Mo. App. E.D. 1979); Vancil v. Carpenter, 935 S.W.2d 42 (Mo. App. W.D. 1996). Undue influence in a will contest is defined in MAI 15.03 [1995 Revision] as “such influence as destroys the free choice of the person making the [will] [codicil].”

But the law does not equate undue influence with the natural influence of affection or attachment or the desire to gratify the wishes of one beloved or trusted by the testator. Glover v. Bruce, 265 S.W.2d 346 (Mo. 1954). Proof of affection for one child over another, however great, does not, in and of itself, amount to undue influence. McFadin v. Catron, 25 S.W. 506 (Mo. 1894); McFadin v. Catron, 38 S.W. 932 (Mo. 1897). Undue influence cannot be based on the mere opportunity to influence or on the mere suspicion. Baker v. Spears, 210 S.W.2d 13 (Mo. 1948). Even when a testator makes unequal distributions of property, this is not sufficient to support an inference of undue influence. Mangan v. Mangan, 554 S.W.2d 418 (Mo. App. S.D. 1977); Kaiser v. Pearl, 670 S.W.2d 915 (Mo. App. E.D. 1984).

Generally, undue influence is proved by circumstantial evidence rather than by direct testimony even though it is a question of fact. The presumption of undue influence can arise only upon the showing of all of the following:

· A confidential or fiduciary relationship existed between the decedent and the beneficiary.

· The beneficiary was given a

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