All the action, when it comes to challenging wills these days comes under the label “undue influence.” Undue influence is hard to write about because it is hard to understand. All wills are the result of influence. We influence people by being mean to them, or being nice to them, or by simply being related to them. But some influence is “undue.” And undue influence can undo grandma’s will.
In this section, I will talk about undue influence in Oregon. I won’t truly explain it because the concept of undue influence confuses even the lawyers who practice in this area. It probably can’t be explained. It can, however, be talked about.
The theory is that if a will, or a trust, or even a gift is the result of undue influence, then the will or trust or gift, is not the true wishes of the elder, but instead reflects the wishes of the person exerting the influence. Grandma appeared to want to give her estate to cousin Harry, but in truth it was only because cousin Harry used underhanded means to convince her that she should do it.
In undue influence case, the focus is not on the mental state of the elder -- as it is in capacity cases -- but rather on the behavior and the intent of the person who received the benefit. If cousin Harry was visiting grandma every day because he loved her, he is entitled to the inheritance set out in the will. If he was visiting her every day to get money out of her, the will could be declared the result of undue influence and therefore void.
The problem is that nobody knows what happened during all those visits between grandma and cousin Harry. Harry is never going to say the visits were anything but expressions of love. This was unacceptable to the courts so so they developed the concept of a “confidential relationship.” The label, “confidential relationship” is no more clear than “undue influence.” In general it means that the elder put special confidence in the person who received the gift. The person might have been the agent under a power of attorney. The person might have been the primary caregiver, or someone who helped the elder with finances. We lawyers have to figure that anyone who was close to and trusted by the elder had a confidential relationship.
The rule was established that if there was a confidential relationship and certain other “suspicious circumstances,” then the person who received the gift--cousin Harry in our case--has to prove that he did not exert undue influence. Unless he proves he didn’t do it, the will fails. That is a tough thing for Harry to prove.
There are seven suspicious circumstances. Here is the list as it relates to cousin Harry.
- Procurement: Did Harry drive grandma to the lawyers office?
- Lack of Independent Advice: Was grandma’s lawyer Harry’s lawyer before he met grandma?
- Secrecy and Haste: Was grandma’s last will done just before she went to the hospital and then hidden from other family members?
- Change of Attitude: Had grandma’s stopped communicating with her children after Harry started to visit every day?
- Change in estate plan: Had grandma’s previous wills all given significant amounts to the church or her children?
- Unusual gifts: Was the gift to a cousin like Harry not what you expect most people to do?
- Susceptibility to influence: Was grandma weak and dependent upon Harry when she wrote the will?
A person claiming that a gift was the result of undue influence, doesn’t have to show all the suspicious circumstances, and nobody really knows how many have to be there. If the person can show a confidential relationship--that cousin Harry had some influence over grandma--and that a couple of the suspicious circumstances existed, then Harry has to prove that he didn’t unduly influence grandma.
The attitude of probate litigators is currently that the undue influence rules let the judge pick the good guys and bad guys. The legal concepts are so muddy that a lawyer is best off simply attacking the character of the person on the other side. The children of grandma will portray Harry as a money grubbing relative showing up in the last months of grandma’s life looking for a payday. Harry will show that grandma’s children had abused her so badly during her life--finally abandoning her when she required care--that she would rather have flushed her money down the toilet than leave it to them. It is a legal free for all.
How do you avoid having a will, trust or gift set aside on the ground of undue influence? There are a few things that can be done. Make sure grandma always has her own lawyer -- one who is chosen by her and is not also the lawyer for other family members. Don’t accept large gifts from old people. Don’t go to Office Depot and buy documents for old relatives to sign. Don’t be a joint signer on the accounts of old people and don’t manage their finances for them unless everything you do is supervised by an independent professional. For most families, those things are impractical.
What can I say? Undue influence, as a way of setting aside transfers by the elderly, is a gold mine for lawyers. The concepts are so vague that when the cases come to court, anything goes. One probate practitioner commented that personal injury cases worth over a hundred thousand dollars are reasonably rare, but middle class estates worth more than that are filed every day. With something as flexible as undue influence to work with, his caseload was always full.
