The Confidential Relationship Trap in Undue Influence Will Contests
| Jurisdiction | Utah,United States |
| Citation | Vol. 2 No. 6 Pg. 6 |
| Pages | 6 |
| Publication year | 1989 |
Charles M. Bennett, J.
It is rare today to find a will contest alleging undue influence where the contestant does not also allege that the beneficiary of the decedent's will had a confidential relationship with the decedent. Based on numerous reported decisions, attorneys for contestants generally must feel that alleging a confidential relationship enhances their client's chance of success. However, in Utah, the confidential relationship issue serves as a trap for contestants. Instead of increasing a contestant's chance for success, arguing that the decedent had a confidential relationship with a beneficiary only obscures the crux of the case: was the will procured through undue influence[1]
To demonstrate how I reach this conclusion, we will first examine what burden of proof the contestant must meet when there is no allegation of a confidential relationship; we will then examine the effect of a confidential relationship on the contestant's burden; next we will examine what must be shown to establish a confidential relationship; and finally we will examine what is likely to transpire in the trial of the case of a jury.[2]
THE CONTESTANT'S BURDEN OF PERSUASION WHERE THERE IS NO CONFIDENTIAL RELATIONSHIP PROVED
Although there have been numerous reported opinions in Utah on undue influence in will contests, it remains somewhat unclear whether the contestant's burden of persuasion is met by a preponderance of the evidence, clear and convincing evidence or something in between.[3] Decisions in other jurisdictions are split between a preponderance of the evidence and clear and convincing evidence, with a few interesting aberrations.[4]The better reasoned conclusion is that the contestant's burden of persuasion is proof by a preponderance of the evidence.
UTAH CASE LAW
In 1917, the Utah Supreme Court ad-dressed the contestant's burden of persuasion in In Re Hansen's Will.[5] There, the district court had ruled prior to trial that the proponent of the will had the burden to prove lack of undue influence. On appeal, the Supreme Court quoted with approval 1 Schouler on Wills Sect. 239 as follows:
The burden of proving fraud or force in the procurement of a will. .. lies upon those who contest the instrument; and anything which imputes heinous misconduct to a party concerned and interested in its execution ought to be fairly established by a preponderance of the evidence. As to undue influence, in the usual and less offensive sense, the burden of proving affirmatively that it operated upon the will in question lies still on the party who alleges it [i.e., the contestant].[6]
Although the Supreme Court did not expressly state that the contestant's burden of persuasion in an undue influence will contest was by a preponderance of the evidence, the logic of its decision leads only to that conclusion.
THE REQUIREMENT OF SUBSTANTIAL PROOF
However, beginning with its 1938 decision in In Re Goldsberry's Estate, the Utah Supreme Court issued four opinions which, although citing In Re Hansen's Will, added the concept that, to succeed, the contestant must adduce substantial evidence of undue influence.[7]
[T]here must be an exhibition of more than influence or suggestion, there must be substantial proof of an overpowering of the testator's volition at the time the will was made, to the extent he is impelled to do that which he would not have done had he been free from such controlling influence, so that the will represents the desire of the person exercising the influence rather than that of the testator.[8]
While it can certainly be argued that the use of "substantial proof means more than a preponderance of the evidence, [9] none of the decision used the words "clear and convincing." Moreover, the use of "substantial proof" may simply reflect that "[t]he courts have recognized that the trend in recent years to reject wills upon the ground of undue influence which is supported chiefly by evidence of a frivolous, speculative, and inconclusive character, should be checked."[10]Indeed, these cases were more concerned with defining the elements necessary to establish undue influence rather than the standard of evidence necessary to meet the contestant's burden of persuasion. For instance, the Court in In Re George's Estate, after stating "substantial proof was necessary, went on to say:
The mere existence of undue influence, or an opportunity to exercise it, is not sufficient; such influence must be actually exerted on the mind of the testator.. . and it must result in the making of testamentary dispositions which the testator would not otherwise have made.[11]
Moreover, in In Re Bryan's Estate, the Court specifically noted that
[N]o precise quantity of influence can be said to be necessary and sufficient in all cases, as the amount necessarily varies with the circumstances of each case, and especially does it vary accordingly as the strength or weakness of mind of each testator varies, the amount of influence necessary to dominate a mind impaired by age, disease or dissipation being obviously less than that required to control a strong mind.[12]
Thus, based on will contest cases alone, the contestant's burden of persuasion should be proof by a preponderance of the evidence.
DEED CONTESTS INVOLVING UNDUE INFLUENCE
The concept of undue influence is not unique to will contests. Contestants can avoid interviews transfers by showing undue influence. Since the majority of the cases deal with actions to set aside real property conveyances, these cases are commonly referred to as deed contests.
While the law respecting the burden of persuasion of undue influence in will contests is unsettled, the law with regard to deed contests is clear: the contestant to the deed must establish undue influence by clear and convincing evidence.[13]This burden rests upon the general proposition that "one who asserts the invalidity of a deed [regardless of the basis] must so prove by clear and convincing evidence."[14]
Some courts have analyzed undue influence using both will contest and deed contest cases.[15]If the issues are in fact interchangeable, then arguably, the "substantial proof" requirement in In Re George's Estate is the equivalent of "clear and convincing evidence" in the deed contest cases.
THE BURDENS OF PERSUASION IN A DEED CONTEST ARE DIFFERENT FROM THOSE IN A WILL CONTEST
In analyzing the impact of a confidential relationship, Utah's appellate courts have used opinions in will contests as authority in deed contests and vice versa.[16]However, these cases simply show that the determination of whether a confidential relationship exists is identical in will contests and deed contests. That, however, does not necessarily mean that in the absence of a confidential relationship the burden of persuasion in undue influence cases is the same in both instances. In fact, because a successful claim has a dramatically different effect in deed contests from will contests, the burden of persuasion should be different.
POLICY CONSIDERATIONS FAVOR A GREATER BURDEN OF PROOF IN DEED CONTESTS THAN IN WILL CONTESTS
A deed is effective upon delivery, without notice to interested persons.[17]Deeds rarely, if ever, show undue influence upon their face. Third parties may rely upon a recorded deed long before parties injured by undue influence learn of the injury. Thus, as stated above, any attack on a deed requires persuasion by clear and convincing evidence. For instance, the Utah Court of Appeals recently addressed the contestant's burden of persuasion in a deed contest based on the allegation that the granter was incompetent to execute the deed: "Mental incompetency must be established by clear, cogent, satisfactory and convincing evidence."[18]
On the other hand, before a will is effective to transfer assets to persons exercising undue influence, generally the will must be admitted to probate, after notice to all interested persons.[19] The probate code protects the rights of third parties regardless of the outcome of the will contest.[20] And while Utah law requires clear and convincing evidence to attack a deed on the grounds of the grantor's incompetency, will contestants can establish incompetency by a preponderance of the evidence.[21]
A WILL CONTESTANT'S BURDEN SHOULD BE THE PREPONDERANCE STANDARD
As a result, the public policy favoring the validity of deeds does not apply when the law examines the validity of a will. It follows from this distinction that a will contestant should not be required to prove undue influence by clear and convincing evidence. Indeed, the will contestant's burden should not be any greater than a preponderance. A will contestant rarely has direct evidence of the beneficiary's undue influence. As the Utah Supreme Court observed:
In a case of this sort, it is not usually possible to procure direct evidence of statements and conduct which one accused of undue influence has used on the decedent. One of the two is dead; the other cannot be expected to give evidence against himself. The usual way is to give the surrounding circumstances from which deductions may be made.[22]
In a similar vein, the Missouri Supreme Court said:
The courts of Missouri have long judicially recognized the basic psychological fact that a person intent upon exerting undue influence in the execution of any aim, including gain by testamentary bequest, will do so in as subtle, furtive, indirect and elusive a manner as possible. . . .As a rule undue influence is not proclaimed from the housetop, but is hidden like a candle beneath a bushel and concealed like fraud and deception, only appearing through carelessness and unguarded openings.[23]
On the other hand, when a will contestant seeks to prove undue influence through circumstantial evidence...
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