When is an inheritance the result of undue influence?
New Jersey probate law requires that every estate whether testate (with a will) or intestate (without a will) be admitted to probate at the Office of the Surrogate in the county where the deceased (testator) resided at the time of his or her death. Once probated the executor of the estate will provide copies of the will to the beneficiaries named in the will. If a beneficiary, or even party who is not a beneficiary under the will, feels that the will does not reflect the true, independent wishes of the deceased they may contest the will by filing a complaint in the Superior Court. A will contest is appropriate where there is a recognized legal basis for a challenge, rather than mere dissatisfaction with the amount of the beneficiaries’ inheritance.
While there are numerous grounds to contest a will one of the more frequent is undue influence. Undue influence may also be a basis to challenge a lifetime transfer, also referred to as an inter vivos transfer. Many of the legal principles cited here apply to those inter vivos gifts which result from undue influence.
Undue influence is commonly defined as that sort of influence which results in the destruction of the free will of the person over whom it is exerted. Influence may be accomplished through violent or peaceful means, or perhaps a suggestion to which the testator yields for the sake of peace. The influence can be very subtle and still be determined to be improper. It amounts to coercion which may be exerted mentally, morally or physically and causes the testator to do that which is contrary to his own volition. In these cases the competence of the testator is presumed, therefore it is rarely an issue. While the testator may suffer from mental issues, as long as they were lucid at the time they signed the will, competence is not an area of inquiry in an undue influence challenge.
Sixty years ago the New Jersey Supreme Court in the case of In re Davis’ Will, (1953) articulated the framework for will contests where improper influence on the part of a beneficiary is alleged. Ordinarily, a party contesting a will or a gift has the burden of proving undue influence which influence must be clearly established. However, New Jersey law provides that undue influence will be presumed in certain instances. In general, if the will benefits a person who shares a “confidential relationship” with the testator, and “suspicious circumstances” exist, then a presumption of undue influence is raised. Further, if the named beneficiary is not the natural object of the testator’s affection for example a neighbor is left the bulk of the estate rather than the testator’s children or if one child is favored over another a court may find undue influence was exerted.
The nature of the proof of undue influence varies with each case. There can be no fixed rules as to what acts constitute undue influence; the matter depends upon the relationship of the parties. The same act that is found to be overbearing in one case may not be in another. The state of the testator’s health and more importantly, his independence of mind at the time the will or gift is made are critical in determining his will power; the free agency of one of normal strength of mind is rarely destroyed. A very slight act or a mere request, may amount to undue influence over a person with very weak will power. Thus, in some situations, the threat of never visiting the testator again unless he alters his will may amount to undue influence. Persuasion always treads on dangerous ground since, where successful, it may amount to a breaking down of resistance.
The initial inquiry is whether or not a confidential relationship as defined in the law exists. Friendship in and of itself would be an insufficient basis to satisfy this prong of the test. However, when the beneficiary is someone whom the deceased relied upon or who acted as his or her caretaker during the last months of his life or during his failing health, this prong could be met. In some instances the friend may take steps to make certain that he or she alone would inherit the testator’s entire estate. But, there does not need to be any intent on the part of the beneficiary to influence the testator, the testator may simply feel that they wish to repay the friend for being there for them and helping them out. In a circumstance where a party makes a will leaving all or substantially all of his property to a close friend rather than a family member issues are raised. If the testator leaves more to the child who takes her shopping or handles her errands, this may be found to be suspect given the relationship and the possible feeling of guilt or gratitude on the part of the parent. The law is clear that it is not customary for a parent to favor one child; all parents love their children equally and would, therefore, not favor them in the will absent influence.
The second prong of the test concerns suspicious circumstances. If the testator was unable to govern himself or manage his own affairs in the weeks and months prior to making the will or gift an issue as to its enforceability is raised. A suspicious circumstance can be found where the decedent’s long standing estate plan was changed only days prior to his demise. Suspicious circumstances may be found in cases where the facts demonstrate that the testator was mentally weak. It could be shown, for example that the testator was had periods of consciousness and unconsciousness and was unable to handle his personal affairs.
Under New Jersey law if the party challenging the will is able to show the existence of a confidential relationship and suspicious circumstances the court will find that there is a presumption of undue influence. Once the presumption is established the burden shifts to the beneficiary to prove that there was no undue influence. In order to rebut the presumption of undue influence, the beneficiary must provide clear and convincing evidence to the contrary. In a case where the testator used the beneficiary’s attorney to prepare the will, suspicion exists; not because the attorney did anything wrong but simply because the lawyer happens to represent and counsel both parties. This higher burden is imposed because of the need for a lawyer of independence and undivided loyalty, owing professional allegiance to no one but the testator. The attorney who drafted testator’s will must have an undivided loyalty to the testator.
The Court must inquire into the reasonableness of the estate plan in terms of the benefits to the natural objects of the testator’s bounty. The court will be sensitive to a will that was executed by the testator which changed the entire disposition of the testator’s estate as compared to prior wills.
Many times in an effort to rebut the presumption of undue influence, the beneficiary may assert that there existed a well-established fondness from the testator to the beneficiary. This does not need to be a romantic attachment but could be simply as friends. However, suspicious circumstances need not be shown in conjunction with the domination of the free will of the decedent. In cases where there is a showing of either domination of the free will of the donor or suspicious circumstances those will suffice to create a presumption of undue influence. Additionally, if the donor is dependent on and makes an improvident gift to the donee of all or virtually all of his assets, a presumption arises that the donor did not understand the consequences of his act. In this context the donee must show that the donor had benefit of competent and disinterested counsel. A similar rule applies when a physically or mentally weakened donor, without receiving any advice, make a gift to donee on whom the donor depends. Finally, if a gift leaves a donor without adequate means of support, the presumption of undue influence is conclusive.
Essentially, if a will or gift doesn’t look right, it probably isn’t.