Some jurisdictions have recognized that haste in preparing and signing the will as well as secrecy--that is, keeping the contents of the will from being shared with disinherited family members--as circumstantial evidence which suggests undue influence. Secrecy as circumstantial evidence of undue influence has not received a warm endorsement in South Dakota. In Johnson v. Shaver, the South Dakota Supreme Court described secrecy as a "badge of undue influence," (166) but in Fleege's Estate, the same court held that secrecy did not raise a presumption of undue influence. (167)
The rushing of an estate plan is often consistent with facts tending to show a wrongdoer's influence in the preparation and execution of a will. But haste in preparing and executing a will as a fact tending to show undue influence should be considered with skepticism. (168) Neither should secrecy shift a presumption. After all, uninfluenced individuals who procrastinate then hastily sign a will in the final stages of a terminal illness and individuals who simply prefer to keep their testamentary plans to themselves are common.
The "unnaturalness" of an estate plan is another relevant factor in an undue influence claim. (169) This factor is especially problematic insofar as it places courts in the position of determining what is natural and what is unnatural, a determination without any developed objective criterion or framework. (170) Should the test of unnaturalness invoke an entirely objective perspective and consider the extent to which a will deviates from the intestacy scheme, or should it adopt a subjective approach and consider whether it was natural for a testator to leave her estate to a beloved friend who meant everything to her? (171) The South Dakota Supreme Court has not expressly eschewed a naturalness factor in an undue influence context, but it has been deferential to the intentions and objectives to the testator in most cases. (172) That is, the subjective approach to an unnaturalness analysis is preferred.
To rebut a presumption of undue influence, the alleged wrongdoer must come forward with some evidence that "he took no unfair advantage of the decedent." (173) The South Dakota Supreme Court has clarified that "the ultimate burden remains on the contestant to prove the [four] elements of undue influence by a preponderance of the evidence." (174) This statement is consistent with South Dakota Codified Laws section 29A-3-407 which places the burden of showing undue influence on the challenger of a will. (175) Ultimately, the sole question in an undue influence will challenge is simply whether the testator's intent was displaced by a wrongdoer.
In 2006, in Estate of Dubendorfer, (176) the court confused the issue by stating that the burden of proof--and not simply the burden of persuasion--shifted in an undue influence case once a prima facie showing had been made by a will contestant. Justice Zinter's concurring opinion in Dubendorfer is convincing. It properly distinguishes the burden of going forward with the evidence from the burden of proof. (178) Justice Zinter's rationale should someday be recognized as more consistent with the text of South Dakota Codified Laws section 29A-3-407.
The undue influence burden shifting framework should not be thought of as rigid exercise of required proof. Instead it should be thought of as an acknowledgement that a will contestant may show undue influence by circumstantial evidence, so long as she does so by the greater weight of the evidence. (179) The four requisite "elements" of undue influence (explicated below) are fairly fixed, but the ability to establish a presumption of undue influence should be mutable and depend on the circumstances of the particular case. (180) Indeed, despite the well-established elements of an undue influence claim, the will contestant's success clearly "does not turn on a single issue" and "the question of undue influence is to be determined from all the surrounding facts and circumstances." (181) Nevertheless, the four recognized recurring factors of undue influence--susceptibility, opportunity, disposition and result (i.e., causation)--merit closer study. (182)
In a typical undue influence case, both testamentary incapacity and undue influence will be asserted by the will contestant. In such a case, the court will examine the testator's state of mind relative to assertions of testamentary incapacity before turning to the susceptibility element of an undue influence claim. Many decisions give relatively short shift to re-examining the testator's state of mind under the rubric of undue influence's susceptibility prong, having already completed an assessment of the testator's mental abilities in the context of a capacity analysis. This is unfortunate since whether an individual possesses the mental acuity to identify their property, their family, and the testamentary plan they desire to effect is a question distinct from whether that same individual is susceptible to undue influence. Susceptibility and the elements of testamentary capacity both consider strength of intellect, but susceptibility in the undue influence context specifically considers the testator's risk at being bullied into an estate plan that she did not want. This is not the same thing as the capability of identifying assests and family members.
A testator's susceptibility to undue influence considers the weaknesses, dependence, illness, and frailty of the testator. (183) Stated the other way around, susceptibility to undue influence considers the extent of the testator's firmness, her mettle, tenacity, and willpower. (184) A related factor considered in some decisions is the dominance of the wrongdoer over the testator. (185) It stands to reason that the weaker and more susceptible the testator, the less dominance is required in order to establish undue influence. (186) Conversely, it would seem that in the case of a testator free from any frailties that the kind of influence that would have to be shown (such as convincing threats of bodily harm) would not fall under the category of undue influence, but of duress, which considers more direct and overt acts of genuine coercion. (187)
Wrongdoer's Opportunity to Influence
Although the alleged wrongdoer's opportunity to exert undue influence is repeatedly recited as an element of an undue influence claim, (188) mere opportunity to assert improper influence is insufficient where there is no evidence that influence was actually asserted. (189) Opportunity may be shown, for example, when the testator and wrongdoer see each other daily, share meals, and the wrongdoer drives the testator to town, or does odd jobs for him, such as mowing his yard. (190) Proximity, emotional ties, and frequent contact are synonymous with opportunity. (191) In most cases, the will contestant must be prepared to introduce evidence that the wrongdoer not only had the opportunity to influence the testator, but also took advantage of that opportunity. (192) Influencing the testator typically takes the form of overpersuasion or coercion sufficient to destroy the free agency of the testator. (193) Fraud and false representations are not required. (194)
"A different rule applies, however, if a confidential or fiduciary relationship is established." (195) Where a confidential relationship between the testator and the alleged wrongdoer is shown, the relationship can establish support for both the third element (a disposition of the wrongdoer to exert undue influence) and the fourth element (a result showing the effect of undue influence). The typical confidential relationship involves an alleged wrongdoer serving as the testator's agent under power of attorney. (196)
Disposition of Wrongdoer to do Wrong
The "disposition" element is the least coherent in the undue influence rubric and courts interpret this third element of an undue influence claim in several different ways. (197) For instance, disposition may be equated with motive or a reason to exert improper influence. (198) In this sense, disposition would consider, for example, whether the wrongdoer had a plan to exert undue influence by reason of the wrongdoer's financial need. Alternatively, disposition may be defined as intent and examine the wrongdoer's mens rea to pressure the testator into favoring the wrongdoer in the testator's estate plan. (199) Disposition, however, has also been employed to described an individual with a predisposition to do wrong, to take advantage of the frail, to gain advantage over the elderly and the meek." (200) Someone who has repeatedly pressured the elderly for financial gain in the past might be said to have a disposition to do wrong in an undue influence case. South Dakota case law has not clearly articulated the contours of the disposition element of an undue influence claim. (201) Case law has established, however, that a disposition to exert undue influence exists when there are "persistent efforts to gain control and possession of testator's property." (202) Disposition might be said to reference a past pattern of wrongdoing behavior.
In establishing the disposition of the wrongdoer to exert undue influence, other courts have considered evidence such as enjoying property of the testator rent-free and receiving gifts from the testator over time, especially when the testator may be easily influenced or unable to properly care for himself financially. (203) In the Pennsylvania case of Estate of Lakatosh, the wrongdoer unlawfully converted over $100,000 of the testator's funds including transferring $72,000 to the wrongdoer's female friend who was unknown to the testator. (204) Meanwhile, the testator "was living in squalor and filth and had fallen behind in the payment of certain household bills including water/sewer bills, and County and City property taxes." (205) A disposition for wrongdoing by the wrongdoer was thus established. (206)