July 13, 2023 Category: Undue Influence
“There is a benefit to clarity. Certainly, the fog surrounding how to apply a common law presumption of undue influence in jurisdictions, such as Michigan, needs to be lifted. This fog will not dissipate on its own and neither will the uncertainty concerning the definition of undue influence. Whether the implications of the presumption of undue influence are clarified in a particular jurisdiction or subject to the ambiguities that may exist in other jurisdictions, it remains important for practitioners to understand how undue influence operates, the factors that may indicate its presence and the elements and operation of the presumption, not only in the jurisdiction where the transaction occurs, but also in other jurisdictions where it may be litigated.”
Sandra D. Glazier, Warren H. Krueger III, John Mabley, Andrew J. Mayoras, Kurt A. Olson and Kenneth F. Silver provide members with commentary that examines undue influence and the presumption of undue influence. Their newsletter is adapted from a white paper prepared by the Michigan Probate and Estate Planning Sections Ad Hoc Committee on Undue Influence. Significant portions of their newsletter represent excerpts from Glazier, Dixon and Sweeney, Undue Influence and Vulnerable Adults, ABA Book Publishing 2020, or additional legal research by Sandra D. Glazier in surveying statutes, cases and scientific studies and papers published in the area of undue influence and the presumption.
Sandra D. Glazier, Esq. is an equity shareholder at Lipson Neilson, P.C., in its Bloomfield Hills, MI office. She was also the 2019 recipient of Bloomberg Tax’s Estates, Gifts and Trusts Tax Contributor of the Year Award and Trusts & Estates Magazines Authors Thought Leadership Award and has been awarded an AEP designation by the National Association of Estate Planners and Councils. She is a Commissioner of the Commission on Law and Aging, a council member of the State Bar of Michigan Probate and Estate Planning Section, and is a member of the Ad Hoc Committee on Undue Influence of the Probate and Estate Planning Section. Sandy concentrates her practice in the areas of estate planning and administration, probate litigation and family law and is a co-author of the ABA’s book Undue Influence and Vulnerable Adults.
Warren Krueger is a shareholder at Foster, Swift, Collins and Swift PC, and is the current leader of Foster Swift’s Trust and Estates Practice Group. Warren’s practice focuses on estate planning, estate and trust administration, and probate litigation. Warren is a council member of the State Bar of Michigan Probate and Estate Planning Section, and is a member of the Ad Hoc Committee on Undue Influence of the Probate and Estate Planning Section.
John D. Mabley is an attorney at the firm of Chalgian & Tripp Law Offices and works in the Southfield office. He is a fellow of the American College of Trust and Estate Counsel, a member (and a former chairperson) of the Probate and Estate Planning Section of the State Bar of Michigan, and practices in the areas of probate and trust litigation, estate planning, elder law, and special needs planning. He is also a member of the Ad Hoc Committee on Undue Influence of the Michigan Probate and Estate Planning Section.
Andrew W. Mayoras is a shareholder at Barron, Rosenberg, Mayoras & Mayoras, P.C., in Troy, Michigan, and concentrates his practice in trust and estate litigation and administration, mediation, and trustee services. He is co-author of the best selling book, Trial & Heirs: Famous Fortune Fights!, He is a council member of the State Bar of Michigan Probate and Estate Planning Section, and is a member of its Ad Hoc Committee on Undue Influence and chair of its amicus committee. Andy is regularly recognized in Super Lawyers, Best Lawyers in America, and other publications in the field of Estate & Trust Litigation. Andy is licensed in both Michigan and Florida.
Kurt A Olson is currently Senior Counsel at the Birmingham Michigan firm of Lippitt O’Keefe PLLC where his practice focuses on Trust and Estate Planning, Administration and Litigation. Kurt is a council member of the State Bar of Michigan Probate and Estate Planning Section, and is a member of the Ad Hoc Committee on Undue Influence of the Probate and Estate Planning Section.
Kenneth Silver is a shareholder in the law firm of Hertz Schram PC in Bloomfield Hills, MI. His practice focuses in the area of trust and estate litigation, real estate and related matters. Ken is a council member of the State Bar of Michigan Probate and Estate Planning Section, and is the chair of the Ad Hoc Committee on Undue Influence of the State of Michigan Probate and Estate Planning Section.
Here is their commentary:
In Michigan the oft-cited definition for undue influence comes from the case of Kar v Hogan[i], which in turn incorporates a definition, which dates back to the 1912 case, Nelson v Wiggins[ii]. Studies have identified a concern that historical cases have fallen behind the science of persuasion often identified in cases where undue influence is found to have occurred.[iii] Elder financial abuse has been called “the crime of the 21st century”[iv]. Yet, in Michigan courts, judges and practitioners are finding greater confusion in the case law of undue influence, particularly as to the application of the presumption of undue influence. This led to the removal of the standard civil jury instruction on the presumption of undue influence in 2014, which to date has not been replaced.
Summary of the Law in Michigan
Definition of Undue Influence
For purposes of review, in Michigan and in many other states, there is no statutory definition of undue influence. The trend appears to be moving towards defining undue influence by statute. In the probate and estate planning context undue influence is commonly defined as influence upon the testator or settlor (hereafter “settlor”) of such a degree that it overpowered the individual’s free choice and caused the individual to act against his/her free will and to instead act in accordance with the will of the influencer. It often results from the abuse of a confidential or special relationship.
In Michigan, to establish undue influence, it must be shown that the settlor was subject to threats, misrepresentation, undue flattery, fraud, or physical or moral coercion sufficient to overpower volition, destroy free agency and impel the grantor to act against his inclination and free will.[v]. Undue influence is not limited to wills and trusts. It can apply to any donative transfer. There is a large body of case law applying the doctrine in many different circumstances. A recitation of these cases is beyond the scope of this article.[vi]
A review of Michigan cases (published and unpublished) reflects that many other actions beyond threats, misrepresentations, undue flattery, fraud or physical or moral coercion have been recognized as resulting in persuasive tactics that have been found to be undue. It has been recognized that undue influence is generally a process pursuant to which the wrongdoer is able to exert influence that is so great that it overpowers the settlor’s free will and results in the settlor disposing of his assets in a fashion contrary to what would truly represent his intentions had the influence not occurred.[vii] It is a course of conduct that essentially supplants the will of the influencer for that of the settlor.[viii] Fraud need not be an element.[ix] Undue Influence can be manifest through a variety of different forms of conduct. Examples include, but are by no means limited to, situations whereby a caregiver takes advantage[x] or one family member poisons a grantor’s relationship against other members of the family[xi]. Further, undue Influence can apply to any donative transfer. Since there is a large body of case law applying the doctrine and in many different circumstances, a recitation of these cases is beyond the scope of this paper.[xii] Nevertheless, it is the opinion of the Committee that it is time to update the definition using this large body of case law and advances in the science as discussed further below.
Presumption of Undue Influence
Under Michigan law a presumption of undue influence exists when a) there is a confidential or fiduciary relationship between the alleged influencer and the alleged victim of influence, b) the alleged influencer benefits from a change in a donative document and c) the alleged influencer had an opportunity to influence the alleged victim.[xiii] In In re Bailey Estate[xiv], the court recognized that “where a person devises his property to one who is acting at the time as his attorney, either in relation to the subject matter of the making of the will, or generally, during that time, such devise is always carefully examined, and of itself raises a presumption of undue influence”. The presumption is evidentiary in nature and not statutory. Rule 301 of the Michigan Rules of Evidence provides;
In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption but does not shift to such party the burden of proof in the sense of the risk of non-persuasion, which remains throughout the trial upon the party on whom it was originally cast.
Juries, judges (and practitioners) have difficulty distinguishing the shifting burden of production from the burden of persuasion that remains, under Michigan law, with the person contesting the transaction or instrument.
The Michigan Court of Appeals, in the unpublished case of In re Estate of Mortimore[xv], determined that a preponderance of the evidence was necessary to rebut the presumption once established. This decision seems to be contrary to Michigan Rule of Evidence 301 which requires that the burden of proof not shift once a presumption is established.[xvi]
Justice Young in his dissent of the Supreme Court’s decision denying leave to appeal in Mortimore stated that “a will’s proponent need only come forth with “substantial evidence” in rebuttal” once the presumption is established.[xvii] What constitutes “substantial evidence” was not addressed nor defined by Justice Young. Generally, the impact of the presumption and what level of evidence is necessary to rebut the presumption is an issue often litigated in Michigan and is the source of substantial confusion among litigants, counsel, judges and especially juries. A statutory approach might help to alleviate this confusion.
A statutory approach could codifies how the presumption is established and that once established the burden shifts to the proponent to prove, by a preponderance of the evidence, that the transaction was NOT the result of undue influence. Under Michigan current common law approach to the implications of the presumption of undue influence, judges, practitioners and juries may have difficulty in separating the burden of production from the burden of persuasion. The distinction between the burden of production and the burden of persuasion is too subtle to be consistently applied in practice. Other states approach the issue from a variety of different viewpoints. Some states, like Florida and California[xviii] flip the burden of proof. States such as Oklahoma suggest that once established, the presumption may be overcome if the individual obtained independent advice with respect to the transaction at issue.[xix] California takes this approach as well, requiring a certificate of independent advice to avoid the presumption.
Restatement of Property Definition of Undue Influence
To help place the discussion of undue influence, as well as the presumption in proper historical context, a review of how the Restatement of Property views the issue may be helpful.
The Restatement (Third) of Property (Wills and Donative Transfers) § 8.3 (the “Restatement”) provides a definition for undue influence and a framework for litigating an undue influence claim. The Restatement provides:
(a) A donative transfer is invalid to the extent that it was procured by undue influence, duress, or fraud.
(b) A donative transfer is procured by undue influence if the wrongdoer exerted such influence over the donor that it overcame the donor’s free will and caused the donor to make a donative transfer that the donor would not otherwise have made.
Under the Restatement, the party contesting the donative transfer (the “contestant”) has the burden of establishing undue influence.[xx] The Restatement acknowledges that the contestant must usually rely on circumstantial evidence to establish the exertion of undue influence because direct evidence of a wrongdoer’s conduct and the donor’s subservience is rarely available.[xxi] Circumstantial evidence is sufficient to raise an inference of undue influence under the Restatement if the contestant proves that: (1) the donor was susceptible to undue influence, (2) the alleged wrongdoer had an opportunity to exert undue influence, (3) the alleged wrongdoer had a disposition to exert undue influence, and (4) there was a result appearing to be the effect of the undue influence.[xxii]
Although the Restatement recognizes four elements, it primarily focuses on susceptibility. The other three factors: opportunity to exert undue influence, the alleged wrongdoer’s disposition to exert undue influence, and a result appearing to be the effect of undue influence, are not addressed in detail by the Restatement.
Susceptibility focuses on the donor’s physical and mental condition, specifically the donor’s age, inexperience, dependence, physical or mental weakness, or any other factor that would make the donor susceptible to undue influence.[xxiii]
The presumption of undue influence, in some form, has been found to exist in all states, in recognition that in certain situations there is a strong likelihood that wrongdoing has occurred, such that when those circumstances are demonstrated to exist, a presumption will be triggered which will shift the onus (at least to some extent) to show that no wrongdoing occurred.[xxiv]
The Restatement recognizes a presumption of undue influence. The presumption arises if: (1) a confidential relationship existed between the alleged wrongdoer and the donor, and (2) there were suspicious circumstances surrounding the preparation, formulation, or execution of the donative transfer.
The term “confidential relationship” encapsulates three different types of relationships: (1) fiduciary, (2) reliant, or (3) dominant subservient. In some cases, a relationship may fall into more than one of those three categories.
A fiduciary relationship is one in which the confidential relationship arises from a settled category of fiduciary obligation.[xxvi] Examples include attorney-client, agent under power of attorney and principal, or guardian and ward.
A reliant relationship is one based on special trust and confidence.[xxvii] One example is a relationship in which the donor was accustomed to being guided by the judgment or advice of the alleged wrongdoer or was justified in placing confidence in the belief that the alleged wrongdoer would act in the interest of the donor.[xxviii] A relationship between a financial adviser and client or a doctor and patient would fall within this category of confidential relationship.
Finally, a dominant-subservient relationship exists where a donor is subservient to the alleged wrongdoer’s dominant influence. Examples include a caregiver and an ill or feeble donor or an adult child and an ill or feeble parent.[xxix]
The Restatement requires that suspicious circumstances accompany a confidential relationship to give rise to the presumption of undue influence. Such circumstances raise an inference of an abuse of the confidential relationship between the alleged wrongdoer and the donor.[xxx]
The following factors may be considered in determining whether suspicious circumstances exist:
(1) the extent to which the donor was in a weakened condition, physically, mentally, or both, and therefore susceptible to undue influence;
(2) the extent to which the alleged wrongdoer participated in the preparation or procurement of the will or will substitute;
(3) whether the donor received independent advice from an attorney or from other competent and disinterested advisors in preparing the will or will substitute;
(4) whether the will or will substitute was prepared in secrecy or in haste;
(5) whether the donor’s attitude toward others had changed by reason of his or her relationship with the alleged wrongdoer;
(6) whether there is a decided discrepancy between a new and previous wills or will substitutes of the donor;
(7) whether there was a continuity of purpose running through former wills or will substitutes indicating a settled intent in the disposition of his or her property; and
(8) whether the disposition of the property is such that a reasonable person would regard it as unnatural, unjust, or unfair, for example, whether the disposition abruptly and without apparent reason disinherited a faithful and deserving family member.[xxxi]
If a contestant establishes the elements of the presumption of undue influence, the burden of going forward with the evidence shifts to the proponent of the donative transfer (the “proponent”).[xxxii] The burden of persuasion, however, always remains with the contestant. If the proponent does not present evidence to rebut the presumption, judgment as a matter of law in favor of the contestant is appropriate. The Restatement is silent on the evidentiary burden that a proponent must satisfy to rebut the presumption.
How Other Jurisdictions Address the Issues
Ordinarily, the burden of proving undue influence falls on the will contestant. Nevertheless, we have long held that if the will benefits one who stood in a confidential relationship to the testator and if there are additional circumstances, the burden shifts to the party who stood in that relationship to the testator. Suspicious circumstances, for purposes of this burden shifting, need only be slight. When there is a confidential relationship coupled with suspicious circumstances, undue influence is presumed and the burden of proof shifts to the will proponent to overcome the presumption. Although that burden of proof is usually discharged in accordance with the preponderance of the evidence standard, if the presumption arises from “a professional conflict of interest on the part of an attorney, coupled with confidential relationships between a testator and the beneficiary as well as the attorney,” the presumption must instead be rebutted by clear and convincing evidence.[xxxiv]
But it appears, in New Jersey, that when the suspicious circumstances are more than “slight” it may become incumbent upon the proponent of the transaction to rebut the presumption by clear and convincing evidence under some circumstances. The resulting legislation required the establishment of further study of predatory alienation. That bill defined predatory alienation as
extreme undue influence on, or coercive persuasion or psychologically damaging manipulation of another person that results in physical or emotional harm or the loss of financial assets, disrupts a parent-child relationship, leads to deceptive or exploitative relationship, or isolates the person from family and friends.[xxxv]
And defined undue influence as
persuasion that overpowers a person’s will, or that otherwise exerts control over a person, so as to prevent the person from acting intelligently, voluntarily, and with understanding, and which effectively destroys the person’s willpower and constrains the person to act in a manner that they would not have done in the absence of such persuasion.
[W]hen the burden shifts from the contestants of the testamentary document to the proponents of it, such as where there is a presumption of undue influence, the proponent can show by clear preponderance of the evidence that she took no advantage of her influence and that the testamentary gift was a result of the testator’s own volition. However, where a beneficiary of a testamentary instrument actually drafts or procures it or there is a confidential relationship so dominating or so overpowering as to overcome the testatrix’s free will, the proponent of the instrument must prove beyond a reasonable doubt that the decedent had both the mental capacity and freedom of will to make the will legally valid.[xxxvii]
A valid inter vivos gift requires that the donor (1) intends to make a gift of the property immediately, (2) effects a delivery of the property, and (3) relinquishes all control and dominion over the property. “The burden of showing that an inter vivos gift was made is on the donee by clear and convincing evidence.”
… The elements of undue influence include the following: (1) a susceptible party; (2) another’s opportunity to exert influence; (3) the fact of improper influence exerted or attempted; and (4) the result showing the effect of such improper influence.” “In determining whether a particular influence brought to bear upon a [donor] was ‘undue,’ the focus is whether the influence was reasonable, given all the prevailing facts and circumstances.”
“Where a fiduciary or confidential relationship exists between the donor and the donee, the transfer is regarded with suspicion that the donee may have brought undue influence to bear upon the donor.” In such a case, a presumption of undue influence arises, and the donee bears the burden going forward and showing, by a preponderance of the evidence, that the gift was free from undue influence. Once the donee makes such a showing, the burden of ultimately demonstrating undue influence, by clear and convincing evidence, must be met by the party challenging the gift.[xl]
(a) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:
(1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.
(2) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.[xlv]
(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:
(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.
(B) Use of affection, intimidation, or coercion.
(C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.
(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.
California also codified the operation and effect of the Presumption of Undue Influence.[xlviii] As of January 1, 2020, California’s statute provides that:
(a) A provision of an instrument making a donative transfer to any of the following persons is presumed to be the product of fraud or undue influence:
(1) The person who drafted the instrument.
(2) A person who transcribed the instrument or caused it to be transcribed and who was in a fiduciary relationship with the transferor when the instrument was transcribed.
(3) A care custodian of a transferor who is a dependent adult, but only if the instrument was executed during the period in which the care custodian provided services to the transferor, or within 90 days before or after that period.
(4) A care custodian who commenced a marriage, cohabitation, or domestic partnership with a transferor who is a dependent adult while providing services to that dependent adult, or within 90 days after those services were last provided to the dependent adult, if the donative transfer occurred, or the instrument was executed, less than six months after the marriage, cohabitation, or domestic partnership commenced.
(5) A person who is related by blood or affinity, within the third degree, to any person described in paragraphs (1) to (3), inclusive.
(6) A cohabitant or employee of any person described in paragraphs (1) to (3), inclusive.
(7) A partner, shareholder, or employee of a law firm in which a person described in paragraph (1) or (2) has an ownership interest.
(b) The presumption created by this section is a presumption affecting the burden of proof. The presumption may be rebutted by proving, by clear and convincing evidence, that the donative transfer was not the product of fraud or undue influence.
(c) Notwithstanding subdivision (b), with respect to a donative transfer to the person who drafted the donative instrument, or to a person who is related to, or associated with, the drafter as described in paragraph (5), (6), or (7) of subdivision (a), the presumption created by this section is conclusive.
(d) If a beneficiary is unsuccessful in rebutting the presumption, the beneficiary shall bear all costs of the proceeding, including reasonable attorney’s fees.[xlix]
Exceptions to application of California’s statutorily created presumption of undue influence exist. They include, but are not limited to, transfers to charities,[l] transfers of property valued of less than $5,000[li], instruments executed outside of California by a person who was not a resident of California at the time of execution,[lii] at death transfers to spouses[liii], and transfers reviewed by an independent attorney who
counsels the transferor, out of the presence of any heir or proposed beneficiary, about the nature and consequences of the intended transfer, including the effect of the intended transfer on the transferor’s heirs and on any beneficiary of a prior donative instrument, attempts to determine if the intended transfer is the result of fraud or undue influence, and signs and delivers to the transferor an original certificate …[liv]
which substantially comports with a form of certificate provided in the statute.[lv]
(a) The person who drafted the transfer instrument;
(b) A caregiver of the transferor who is a dependent adult;
(c) A person who materially participated in formulating the dispositive provisions of the transfer instrument or paid for the drafting of the transfer instrument; or
(d) A person who is related to, affiliated with or subordinate to any person described in paragraph (a), (b) or (c).
(a) After the transferor’s death, unless the transfer instrument is made on or after October 1, 2011; or
(b) During the transferor’s lifetime, unless the transfer instrument is made on or after October 1, 2015.
With regard to the exceptions statutorily recognized to application of the presumption, NRS 155.0975 provides that [t]he presumption established by NRS 155.097 does not apply:
(a) Counsels the transferor about the nature and consequences of the intended transfer;
(b) Attempts to determine if the intended consequence is the result of fraud, duress or undue influence; and
(c) Signs and delivers to the transferor an original certificate of that review in substantially the following form:
SAMPLE CERTIFICATE OF INDEPENDENT REVIEW
I, ………………………… (attorney’s name), have reviewed ………………………… (name of transfer instrument) and have counseled my client, ………………………… (name of client), on the nature and consequences of the transfer or transfers of property to ………………………… (name of transferee) contained in the transfer instrument. I am disassociated from the interest of the transferee to the extent that I am in a position to advise my client independently, impartially and confidentially as to the consequences of the transfer. On the basis of this counsel, I conclude that the transfer or transfers of property in the transfer instrument that otherwise might be invalid pursuant to NRS 155.097 are valid because the transfer or transfers are not the product of fraud, duress or undue influence.
…………………………………………………………………(Name of Attorney) (Date)
(a) A federal, state or local public entity; or
(b) An entity that is recognized as exempt under section 501(c)(3) or 501(c)(19) of the Internal Revenue Code, 26 U.S.C. § 501(c)(3) or 501(c)(19), or a trust holding an interest for such an entity but only to the extent of the interest of the entity or the interest of the trustee of the trust.
These statutory applications are not intended to abrogate or limit common law rules or principals, unless those rules and principals are inconsistent with the NRS 155.097 and 155.0975.[lix]
governing instrument is presumed to be the product of undue influence if either:
AZ Rev Stat §14-2712(F) establishes that preponderance of the evidence is required to be presented by the proponent of the instrument in order to overcome the presumption.
(1) In all proceedings contesting the validity of a will, the burden shall be upon the proponent of the will to establish prima facie its formal execution and attestation. A self-proving affidavit executed in accordance with s. 732.503 or an oath of an attesting witness executed as required in s. 733.201(2) is admissible and establishes prima facie the formal execution and attestation of the will. Thereafter, the contestant shall have the burden of establishing the grounds on which the probate of the will is opposed or revocation is sought.
(2) In any transaction or event to which the presumption of undue influence applies, the presumption implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301-90.304.
In another statute, Florida addressed the issue of spousal rights procured by fraud, duress or undue influence. In Fla. Stat. Ann. § 732.805, the legislature provided that a variety of rights would be lost unless the decedent and the surviving spouse voluntarily cohabited as husband and wife with full knowledge of the facts constituting the fraud, duress, or undue influence or both spouses otherwise subsequently ratified the marriage.[lxi] In such situations a contestant has the burden of establishing, by a preponderance of the evidence, that the marriage was procured by fraud, duress, or undue influence and if ratification of the marriage is raised as a defense, the surviving spouse has the burden of establishing, by a preponderance of the evidence, the subsequent ratification by both spouses.[lxii]
(1) the use by one in whom a confidence is reposed by another person or who holds a real or apparent authority over the other person of the confidence or authority for the purpose of obtaining an unfair advantage over the other person;
(2) taking an unfair advantage of another person’s weakness of mind; or
(3) taking a grossly oppressive and unfair advantage of another person’s necessities or distress.[lxiii]
When any of these relationships exist and when a transfer or execution is made to a corporation or organization primarily on account of the membership, ownership or employment interest or for the benefit of the fiduciary or confidante, a fiduciary or confidential relationship with the corporation or organization is deemed to exist.[lxv]
A gift by a person who is just over the age of majority or who is particularly susceptible to be unduly influenced by his parent, guardian, trustee, attorney, or other person standing in a similar confidential relationship to one of such persons shall be closely scrutinized. Upon the slightest evidence of persuasion or influence, such gift shall be declared void at the instance of the donor or his legal representative and at any time within five years after the making of such gift.
Georgia courts had previously found that “[i]t is for the common security of mankind that gifts procured by agents, and purchases made by the agents, from their principal, should be scrutinized with a close and vigilant suspicion.”[lxvi]
A transaction between a trustee and the trust’s beneficiary during the existence of the trust or while the influence acquired by the trustee remains by which the trustee obtains any advantage from the trust’s beneficiary is presumed to be entered by the trust’s beneficiary without sufficient consideration and under undue influence. This presumption is a rebuttable presumption.[lxix]
In North Dakota, N.D.R. Ev. Rule 301 generally provides that, in civil cases, unless a statute or the North Dakota Rules of Evidence otherwise provides that unless a statute provides to the contrary, the “party against whom a presumption is directed has the burden of proving that the nonexistence of the presumed fact is more probable than its existence”.[lxx]
(1) by a preponderance of the evidence that the transferee’s share is not greater than what he or she would have received under an instrument in effect before he or she became a caregiver, or
(2) by clear and convincing evidence that the transfer was not the result of fraud, duress or undue influence.[lxxii]
In addition to its statutory approach relating to transfers to caregivers, Illinois has addressed undue influence in other scenarios. In In re Estate of Burren,[lxxiii] the Illinois appellate court found that:
[t]o overcome a presumption of undue influence in a will contest, a fiduciary who benefits from a will must present clear and convincing evidence that in the will, the testator freely expressed his own wishes and not the wishes of the fiduciary. Courts have considered such factors as whether the fiduciary “made a full and frank disclosure of all relevant information; * * * [whether] adequate consideration was given; and [whether the testator] had independent advice before completing the transaction.”[lxxiv]
The presumption of undue influence, in some form, has been found to exist in all states, in recognition that in certain situations there is a strong likelihood that wrongdoing has occurred, such that when those circumstances are demonstrated to exist, a presumption will be triggered which will shift the onus (at least to some extent) to show that no wrongdoing occurred.[lxxvi]
The Science[lxxvii] With Respect to Undue Influence
To understand undue influence, one needs to understand that undue influence is “not a one-time act; it involves a pattern of manipulative behaviors to get a victim to do what the exploiter wants, even when the victim’s actions appear to be voluntary or are contrary to his or her previous beliefs, wishes, and actions.”[lxxviii] Undue influence “occurs as the result of a process, not a one-time event.”[lxxix] These types of cases are generally very fact-dependent. At times, the tactics used to exert influence may be “similar to brainwashing techniques used by cults and hostage takers. There are also parallels to domestic violence, stalking, and grooming behaviors used by some sexual predators.”[lxxx] Consequently, a thorough understanding of the facts leading up to (and sometimes after) the execution of an instrument at issue and the relationship between the individual and the influencer is needed.[lxxxi] As a general rule:
[u]ndue influence is not exercised openly, but, like crime, seeks secrecy in which to accomplish its poisonous work. It is largely a matter of inference from facts and circumstances surrounding the testator, his character and mental condition, as shown by the evidence, and the opportunity possessed by the beneficiary for the exercise of such control.[lxxxii]
Moreover, “[f]inancial exploitation is the most common form of elder abuse”[lxxxiii]. Importantly, it has been recognized that
[f]or some, victimization can be the “tipping point” that pushes the victim into poorer health. The victim’s quality of life “can be jeopardized [by] declining functional abilities, progressive dependency, a sense of helplessness, social isolation, and a cycle of worsening stress and psychological decline.[lxxxiv]
Having been recognized as a form of financial abuse, it is important to recognize that undue influence “may be insidious and not in front of witnesses, but fair inferences can be drawn from the facts.”[lxxxv]
In 2008 the ABA Commission on Law and Aging published the results of an extensive analysis of issues relating to capacity and undue influence.[lxxxvi] This publication (and models and studies cited therein) are often relied upon by professionals in assessing issues related to these areas. Following a statutory change relating to the presumption of undue influence in British Columbia, a Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide, published by the British Columbia Law Institute[lxxxvii], in defining undue influence, now cites to some of the very same models and studies identified in the ABA’s Handbook (including the Thaler Singer, Blum IDEAL, SCAM, and Brandl/Heisler/Stengel Models.[lxxxviii]
In 2008, the Psychogeriatric Association’s subcommittee of an international task force undertook an extensive review of the types of factors that might be identified from a “clinical” perspective to alert an expert to the risk of undue influence[lxxxix]:
(i) [S]ocial or environmental risk factors such as dependency, isolation, family conflict and recent bereavement; (ii) psychological and physical risk factors such as physical disability, deathbed wills, sexual bargaining, personality disorders, substance abuse and mental disorders including dementia, delirium, mood and paranoid disorders; and (iii) legal risk factors such as unnatural provisions in a will, or a provision not in keeping with previous wishes of the person making the will, and the instigation or procurement of a will by a beneficiary.[xc]
Undue influence may be more likely to occur:
(i) [w]here there is a special relationship in which the testator invests significant trust or confidence in another; (ii) where there is relative isolation (whether due to physical factors or communication difficulties) which limit free flow of information and allows subtle distortion of the truth: and, (iii) where there is vulnerability to influence through impaired mental capacity or emotional circumstances (such as withholding of affection, or persuasion on grounds of social, cultural or religious convention or obligation).[xci]
In 2010, the Borchard Foundation Center on Law & Aging published a study[xcii] that essentially adopted the SODR model which formed the premise (at least in part) for the enactment of California’s statutory definition of undue influence when it was found that:
. . . [d]espite wide variations in the context and circumstances in which [undue influence] and coercive persuasion in general have been explored, the elements of [undue influence] are remarkably similar in each and can be reduced to four salient factors: susceptibility (of the victim), opportunity (of the influencer), disposition (of the influencer), and result.[xciii]
Undue Influence and Vulnerable Adults,[xciv] addressed a recent study on the psychology of persuasion. That study identified several (additional) categories of tactics that persuaders may employ to effect undue influence for financial gain.[xcv] Among the tactics identified, generally applicable to estate planning situations, are “reciprocity,” “commitment and consistency,” “authority,” and the creation of or taking advantage of “false memories”:
Reciprocity: The “reciprocity” principal entails creating a debt of gratitude. While courts are reticent to apply this principle in family dynamics, it has been found that “[i]f kindness and affection result in overcoming the testator’s free agency and leave the will that of the beneficiary rather than the testator, then such constitutes undue influence.”[xcvi]
Commitment and consistency: When the “commitment and consistency” process is used, persuaders exploit the internal and interpersonal pressures often felt by individuals to justify and stand by decisions once made. Here, the persuader makes it easy for the victim to make a commitment. This tactic can be successful even with persons described as “strong-willed” or “stubborn.” Once such individuals make a commitment, they tend to stick to it. Therefore, after the commitment that benefits the persuader is made, the victim is encouraged to follow through. In addition, by using this process, a “stubborn” individual may be persuaded to adopt negative perceptions of others and the belief that others are undeserving of an inheritance. Once the victim incorporates such beliefs as “facts,” the “commitment and consistency” principle can make it difficult to overcome such perceptions and convince the victim that the contrary may be true.[xcvii]
Authority: Most people have a respect for authority and a disinclination to defy authority. When the “authority” process is used, the persuader attempts to clothe himself with the trappings of authority or to recruit others, including professionals, to aid and abet the persuader, whose authority (on its own or by such affiliation) benefits the persuader’s efforts for financial gain. This process abuses the perception of authority, whether that perception is created by title, education, or attire. In the context of estate planner, the persuader “will often take steps to place himself in control of the testator’s finances or estate plan and then represent to the testator that he must sign off on modification or transactions because they are necessary . . . .”[xcviii] This process abuses the trust that the victim has placed in others.
False memories: Without being ageist, studies have indicated that the elderly may be more vulnerable than capable adults to the creation of false memories, which can be induced by repetitive efforts of a predator to reframe the elder’s relationship with family members or other previously favored individuals or institutions.[xcix]
Recently, studies have identified that a mere reliance on historical cases may not have caught up with the science of persuasion often identified and utilized in cases where undue influence is found to have occurred.[c] These studies, in part, formed the underpinnings of California’s enactment of a statutory approach to undue influence and the presumptions arising out of the potential abuse of a confidential relationship in its effort to protect its vulnerable population.[ci] Mary Joy Quinn, a nurse and gerontologist who was employed as a conservatorship investigator for the probate court system in California, and ultimately became the director of California’s Probate Department, was at the forefront of studies conducted with the benefit of grant money in California to address the seemingly ever-increasing issue of undue influence.[cii] Her research team undertook an extensive review of literature relating to coercion and persuasion as well as a broad range of laws, focus groups and case reviews (from California and other states). Their extensive analysis, coupled with discussions with various disciplines, helped them to arrive at a framework for evaluating undue influence, including situations where the victim did or did not suffer from cognitive impairments.
Ultimately, they developed an overall definition of undue influence that recognized two related concepts. The first was they classified as “undue influence”, with a second related concept being one of “predatory alienation”.[ciii] They defined these concepts as follows:
“Undue Influence” is when individuals who are stronger or more powerful get weaker people to do things they would not have done otherwise, using various techniques or manipulations over time. They may isolate the weaker person, promote dependency, or induce fear and distrust of others. The abuser tries to convince the vulnerable person that friends, family members, or caregivers have malevolent motives and cannot be trusted. The related concept of “predatory alienation” is purposefully disrupting existing relationships, often through deception, to isolate people from those they trust in order to exploit, control, or take advantage of them.[civ]
Possible Pros and Cons to a Statutory Approach: Pros and Cons
There is a benefit to clarity. Certainly, the fog surrounding how to apply a common law presumption of undue influence in jurisdictions, such as Michigan, needs to be lifted. This fog will not dissipate on its own and neither will the uncertainty concerning the definition of undue influence. Whether the implications of the presumption of undue influence are clarified in a particular jurisdiction or subject to the ambiguities that may exist in other jurisdictions, it remains important for practitioners to understand how undue influence operates, the factors that may indicate its presence and the elements and operation of the presumption, not only in the jurisdiction where the transaction occurs, but also in other jurisdictions where it may be litigated.
HOPE THIS HELPS YOU HELP OTHERS MAKE A POSITIVE DIFFERENCE!
Sandra D. Glazier
Warren H. Krueger
Andrew J. Mayoras
Kurt A. Olson
Kenneth F. Silver
LISI Estate Planning Newsletter #3053 (July 1, 2023) at http://www.leimbergservices.com. Copyright 2023 Leimberg Information Services, Inc. (LISI). Reproduction in Any Form or Forwarding to Any Person Prohibited – Without Express Permission. This newsletter is designed to provide accurate and authoritative information regarding the subject matter covered. It is provided with the understanding that LISI is not engaged in rendering legal, accounting, or other professional advice or services. If such advice is required, the services of a competent professional should be sought. Statements of fact or opinion are the responsibility of the authors and do not represent an opinion on the part of the officers or staff of LISI.
[i] Kar v. Hogan, 399 Mich. 529 (1976).
[ii] Nelson v Wiggins, 172 Mich 191 (1912)
[iii] See Dominic J. Campisi, Evan D. Winet, & Jack Calvert, Undue Influence: The Gap Between Current Law and Scientific Approaches to Decision-Making and Persuasion, 43 ACTED L.J. 371-380 (2018) (citing the psychological study by Robert B. Cialdini, Influence: The Psychology of Persuasion).
[iv] Kristen M. Lewis, The Crime of the 21st Century: Elder Financial Abuse, 28 Prob. & Prop. (2014).
[v] Kar v. Hogan, supra at 537. This definition, including a very brief explanation of what is not undue influence, is set forth in Michigan Model Civil Jury Instructions 170.44 pertaining to will contests and instruction 179.10 pertaining to Trusts.
[vi] For an excellent discussion of the definition of undue influence, development of the science concerning vulnerable adults and the presumption of undue influence see Undue Influence and Vulnerable Adults by Sandra Glazier, Thomas Dixon and Thomas Sweeney, published by the Real Property, Trust and Estate Law Section of the ABA, 2020. Sandra Glazier was a participant in our committee.
[vii] In re Spillette Estate, 352 Mich 12, 17‐18 (1958).
[viii] Kar v Hogan, supra at fn 9.
[ix] In re Estate of Karmey, 468 Mich 68, 73 (1976).
[x] In re Rosa’s Estate, 210 Mich 628, (1920); In re Leone Estate, 168 Mich App 321 (1988).
[xi] In re Hillman’s Estate, 217 Mich 142 (1921).
[xii] For an excellent discussion of the definition of undue influence, development of the science concerning vulnerable adults and the presumption of undue influence see Undue Influence and Vulnerable Adults by Sandra Glazier, Thomas Dixon and Thomas Sweeney, published by the Real Property, Trust and Estate Law Section of the ABA, 2020. Sandra Glazier was a participant in our committee.
[xiii] Kar v Hogan, supra.
[xiv] In re Bailey Estate, 186 Mich 677, 691 (Mich 1915).
[xv] In re Estate of Mortimore, unpublished opinion of the Michigan Court of Appeals issued May 17, 2011 (Docket No. 297280), 2011 WL 1879737, leave denied, 491 Mich 925 (2012).
[xvi] As noted by Justice Young in his Mortimore dissent from the decision of the Supreme Court denying leave to appeal, once the presumption is established, requiring the proponent of a document to prove by a preponderance of the evidence that undue influence does not exist, improperly shifts the burden of proof. He also noted that the Mortimore decision appears contrary to the Supreme Court’s decision in Widmayer v Leonard, 422 Mich 280 (1985) holding that “once a presumption is created that presumption is a procedural device which regulates the burden of going forward with the evidence and is dissipated when substantial evidence is submitted by the opponents to the presumption.” Id @ 286.
[xvii] In re Estate of Mortimore, id.
[xviii] Florida Statute §733.107; Cal. Prob. Code §21380 et. seq.
[xix] White v Palmer, 1971 OK 149. In California, the statutory presumption may not apply when a certificate of independent review is provided. Cal. Prob. Code §21384.
[xx] Restatement, comment b.
[xxi] Restatement, comment e.
[xxii] Restatement, comment e.
[xxiii] Restatement comment e.
[xxiv] See, Undue Influence California Report 2010, supra, at p. 101-102, citing Meyers, 2005
[xxv] Michigan has defined a fiduciary relationship as:
A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationship – such as trustee – beneficiary, guardian – ward, agent – principal, and attorney – client require the highest duty of care. Fiduciary relationships usually arise in one of four situations: (1) when one person places trust in the faithful integrity of another, who, as a result, gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognized as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer. In re Karmey Estate 468 Mich 68, 75 (2003).
But has also recognized that confidential relationships can embrace both technical fiduciary relationships as well as more informal relationship that can exist whenever one man trusts in and relies upon another. Vant Hof v Jemison, 291 Mich 385, 393 (1939).
[xxvi] Restatement, comment g.
[xxvii] Restatement, comment g.
[xxviii] Restatement, comment g.
[xxix] Restatement, comment g.
[xxx] Restatement, comment h.
[xxxi] Restatement, comment h.
[xxxii] Restatement, comment f.
[xxxiii] Stover v. Davis, 268 So. 3d 559 (Miss. 2019).
[xxxiv] In re Estate of Stockdale, 196 N.J. 275, 953 A.2d 454 (2008).
[xxxvi] Lenderman v. Martin, 1999 WL 407519 (Ark. Ct. App. 1999)
[xxxvii] Id. internal citations omitted.
[xxxviii] Carvalho v. Estate of Carvalho, 2009 VT 60, 186 Vt. 112, 978 A.2d 455.
[xxxix] Modie v. Andrews, C.A. NO. 19543, 2000 Ohio App. LEXIS 3333 (Ct. App. July 26, 2000).
[xli] In re Estate of Pedrick, 505 Pa. 530, 482 A.2d 215 (1984); Estate of Reichel, 484 Pa. 610, 400 A.2d 1268 (1979); In re Clark’s Estate, 461 Pa. 52, 334 A.2d 628 (1975); In re Quein’s Estate, 361 Pa. 133, 62 A.2d 909 (1949); Burns v. Kabboul, 407 Pa. Super. 289, 595 A.2d 1153 (1991); In re Estate of Simpson, 407 Pa. Super. 1, 595 A.2d 94 (1991); In re Mampe, 2007 Pa. Super. 269, 932 A.2d 954 (2007); In re Estate of Stout, 2000 Pa. Super. 37, 746 A.2d 645 (2000).
[xlii] Gautier v. Gonzales-Latiner, 25 V.I. 26 (1990),
[xliii] Matter of Estate of Depriest, 733 S.W.2d 74 (Tenn. Ct. App. 1986); Richmond v. Christian, 555 S.W.2d 105 (Tenn. 1977).
[xliv] Gautier v. Gonzales-Latiner, 25 V.I. 26 (1990).
[xlv] To provide a greater understanding of the intent behind this provision, comments regarding the legislative intent, reflect:
Assembly Bill 140 lists family members as among those with ‘apparent authority’. The intent is to describe those who occupy positions of trust and who thus might more easily unduly influence an elder. The intent is not to address who might be the natural object of an elder’s bounty or to draw any particular negative inference from a family member’s receipt of something (whether testamentary or inter vivos) from an elder.
Assem. Daily J., 2013-14 Reg. Sess., Sept. 12, 2013, p. 3368.
[xlvi] Cal. Welfare and Institutions Code §15610.70
[xlvii] In understanding the issue of “inequity” the author of the bill that resulted in California’s enactment of this statute wrote:
“Legislative Intent – Assembly Bill No. 140”: My Assembly Bill 140 would codify the definition of undue influence to mean excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. However, an inequitable result, without more, would not be sufficient to prove undue influence, as the intent of the elder would remain paramount. Thus, a person remains free to dispose of his property, both by testamentary device and donative transfer, even if the disposition appears unfair in the eyes of others so long as the disposition results from an exercise of that person’s free will. Unfairness is therefore to be determined from the standpoint of the elder.
Assem. Daily J., 2013-14 Reg. Sess., Sept. 12, 2013, p. 3368.
[xlviii] Cal. Probate Code §21380.
[l] Cal. Probate Code §21382(d).
[li] Cal. Probate Code §21382(e).
[lii] Cal. Probate Code §21382(f).
[liii] Cal. Probate Code §21385.
[liv] Cal. Probate Code §21384(a).
[lvi] NRS 155.097(2).
[lvii] NRS 15.093, et seq.
[lviii] NRS 155.0975
[lix] NRS 155.098.
[lx] AZ Rev Stat Section 14-2712 (2014). However, excluded from the act are proceedings relating to the validity of a power of attorney executed pursuant to §14-5506 and the ownership of multi-party accounts established under §14-6211.
[lxi] Fla. Stat. Ann. § 732.805(1).
[lxii] Fla. Stat. Ann. § 732.805(4).
[lxiii] Mont. Code Ann. § 28-2-407.
[lxiv] Main Title 33: Chapter 20, Section 1022.
[lxv] Id, §1022 (2).
[lxvi] Harrison v. Harrison, 214 Ga. 393, 105 S.E.2d 214 (1958).
[lxvii] Mo. Rev. Stat. § 197.480 .
[lxviii] N.D. Cent. Code, § 59-18-01.1.
[lxx] N.D.R. Ev. Rule 301(b).
[lxxi] 755 ILCS 5, Sec. 4a-5.
[lxxii] 755 ILCS 5/4a-15.
[lxxiii] In re Estate of Burren, 2013 IL App. (1st) 120996, 374 Ill. Dec. 85, 994 N.E.2d 1022 (App. Ct. 1st Dist. 2013), appeal denied, 377 Ill. Dec. 764, 2 N.E. 1045 (Ill 2013).
[lxxiv]Id. (internal citations omitted; emphasis added).
[lxxv] Virginia SB 1123, https://lis.virginia.gov/cgi-bin/legp604.exe?211+sum+SB1123. This Senate Bill passed the Senate on 1/21/21 and has been referred to the Committee for Courts of Justice in the Virginia House of Representatives on 2/2/21.
[lxxvi] See, Undue Influence California Report 2010, supra, at p. 101-102, citing Meyers, 2005,
[lxxvii] Much of this section represents excerpts from Undue Influence and Vulnerable Adults, supra.
[lxxviii] Bonnie Brandle, Candice J. Heisler, & Lori A. Stiegel, The Parallels Between Undue Influence, Domestic Violence, Stalking, and Sexual Assault, 17 J. Elder Abuse Negl. 37 (2005).
[lxxix] Id. at 39.
[lxxxii] Walts v. Walts, 127 Mich. 607, 611, 86 N.W. 1030, 1031 (1901).
[lxxxiii] AEquitas, The Prosecutors’ Resource; Elder Abuse, April 2017, at p. 6.
[lxxxiv] Id, at p. 10.
[lxxxv] In re Paquin’s Estate, 328 Mich. 293, 303, 43 N.W.2d 858, 862 (1950). See also In re Persons Estate, 346 Mich. 517, 532, 78 N.W.2d 235, 243 (1956).
[lxxxvi] ABA Commn. on L. & Aging & Am. Psychological Assn., Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists (2008).
[lxxxvii] Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide, Prepared for the British Columbia Law Institute by the Members of the Project Committee on Potential Undue Influence: Recommended Practices for Wills Practitioners, BCLI Report no. 61, October 2011.
[lxxxviii] Id. at p. 15.
[lxxxix] Carmelle Peisah, Sanford I. Finkel, Kenneth Shulman, Pamela S. Melding, Jay S. Luxenberg, Jeremia Heinik, Robin J. Jacoby, Barry Reisberg, Gabriela Stoppe, A. Barker, Helen Cristina Torrano Firmino & Hayley I. Bennett, The Wills of Older People: Risk Factors for Undue Influence, for International Psychogeriatric Association Task Force on Wills and Undue Influence, 21 Int. Psychogeriatric., at 7-15, 10, 11 (2009).
[xc] Id. at 7.
[xci] Id. at 10.
[xcii] Mary Joy Quinn, Lisa Nerenberg, et al., Undue Influence: Definitions and Applications, report for The Borchard Foundation Center on Law & Aging (March 2010).
[xciii] Daniel A. Plotkin, James E. Spar, & Howard L. Horwitz, Assessing Undue Influence, 44 J. Am. Acad. Psychiatry Law 344-351 (September 2016), http://jaapl.org/content/44/3/344.
[xciv] Undue Influence and Vulnerable Adults, supra at p.67.
[xcv] Id. at 67, citing Undue Influence: The Gap Between Current Law and Scientific Approaches to Decision-Making and Persuasion, supra at 371-380 (further citing the psychological study by Robert B. Cialdini, Influence: The Psychology of Persuasion).
[xcvi] Kelley v. First State Bank of Princeton, 81 Ill. App. 3rd 402, 414 (Ill. App. Ct. 1980), 401 N.E.2d 247, 256 (1980).
[xcvii] Campisi, Undue Influence, supra note 37, at 373, 374.
[xcviii] Id. at 377, 378.
[xcix] Id. at 367, 368.
[c] See Dominic J. Campisi, Evan D. Winet, & Jake Calvert, Undue Influence: The Gap Between Current Law and Scientific Approaches to Decision-Making and Persuasion, 43 ACTEC L. J. 371-380 (2018) (citing the psychological study by Robert B. Cialdini, Influence: The Psychology of Persuasion).
[ci] See California Welfare and Institutions Code Section 15610.70,
[cii] Unpacking Undue Influence, https://www.elderjusticecal.org/blog-elder-justice-viewpoints/unpacking-undue-influence
[cv] Kar v. Hogan, supra.
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