Were you Just Being Helpful in driving dearly departed mother to her attorney’s office to sign her will – or were you Unduly Influencing her to prepare an invalid document?
That may be just one of the many facts in the long and winding road of undue influence estate litigation where both sides can convincingly argue that the same facts prove their very different cases.
In Oregon, In re Reddaway’s Estate, 214 Or. 410, 421-427, 329 P.2d 886 (1958), identifies seven factors or guidelines that have been raised in undue influence cases:
- Procurement. The beneficiary participates in preparing the will. This can cut both ways: Was it natural that mother asked the favored son to get estate documents together or was it an example of exerting undue influence?
- Lack of independent advice. A beneficiary who participates in preparing the will and has a confidential relationship with the testator has a duty to see that the testator receives independent, disinterested advice. That is, it looks really bad when you take your feeble aunt to your attorney of 35 years, rather than her normal attorney or a truly neutral lawyer.
- Secrecy and haste. Was the will kept from family members who might otherwise have been the natural objects of the testator’s bounty, or done in secrecy and/or haste? Yet again, it can cut both ways when it may be entirely natural that the ne’er-do-well child was not told of changes to the will, but the same child will argue mom "always" told him of her financial decisions.
- Change in the testator’s attitude following close association with the beneficiary.
- Change in the testator’s plan of disposing of property. Were there unexplained changes from previous wills or from intestate dispositions? "Unexplained" is the key word.
- An unnatural or unjust gift to the beneficiary as compared to those who otherwise would naturally be expected to take.
- Susceptibility to influence. A testator who is physically sick, emotionally or mentally confused, or becomes dependent on the beneficiary is susceptible to influence.