Grounds for Challenging Wills
- Undue influence
Broadly speaking, undue influence is “mental, moral or physical exertion which has destroyed the free agency of the testator by preventing him or her from following the dictates of his own mind and will and by accepting instead the domination and influence of another.” Haynes v. First National State Bank, 87 N.J. 163, 176 (1981). To constitute undue influence, there must be a “disruption of the freedom of will and of judgment of the testator.” Pascale v. Pascale, 113 N.J. 20 (1988).
Because undue influence is practiced surreptitiously in many cases, the contestant is aided by certain presumptions:
[T]he burden of proving undue influence lies upon the contestant unless the will benefits one who stood in a confidential relationship to the testatrix and there are additional circumstances of a suspicious character present which require explanation. In such case the law raises a presumption of undue influence and the burden of proof is shifted to the proponent.
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The first element necessary to raise a presumption of undue influence, a ‘confidential relationship’ between the testator and a beneficiary, arises ‘where trust is reposed by reason of the testator’s weakness or dependence or where the parties occupied relations in which reliance is naturally inspired or in fact exists…
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The second element necessary to create the presumption of undue influence is the presence of suspicious circumstances which, in combination with such a confidential relationship, will shift the burden of proof to the proponent. Such circumstances need be no more than ‘slight.’
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In this jurisdiction, once a presumption of undue influence has been established the burden of proof shifts to the proponent of the will, who must, under normal circumstances, overcome that presumption by a preponderance of the evidence.
[Haynes, supra, at 176-78]
Note that where the will is drawn by an attorney who is, or who represents, the primary beneficiary, the presumption must be overcome by clear and convincing evidence:
[H]ence, the presumption of undue influence created by 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, must be rebutted by clear and convincing evidence.
[Haynes, supra, at 183]
The following all are indicia of suspicious circumstances:
- Proponent initiates will preparation
- Proponent selects scrivener
- Natural objects of testator’s bounty excluded
- Making of will is concealed and proponent takes possession
- Proponent spreads false stories about natural objects
- Testator is mentally weak
- Disposition is unnatural
- Will execution in hospital, nursing home, etc.
And with respect to inter vivos transfers, a presumption of undue influence arises when the contestant proves that the donee dominated the will of the donor or when a confidential relationship exists between donor and donee:
[W]hen the presumption of undue influence arises from an inter vivos gift, the donee has the burden of showing by clear and convincing evidence not only that ‘no deception was practiced therein, no undue influence used, and that all was fair, open and voluntary, but that it was well understood.’
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If the donor is dependent on and makes an ‘improvident gift’ to the donee that strips the donor of all or virtually all 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 the benefit of competent and disinterested counsel.’
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A similar rule applies when a physically or mentally weakened donor, without receiving any advice, makes a gift to a donee on whom the donor depends. If that gift leaves the donor without adequate means of support, the presumption of undue influence is conclusive.
[Pascale, supra, at 31. Citations omitted]
Query: What rule applies in the case of a partially funded revocable living trust whose complete funding does not occur until after the decedent’s death via a pour-over will?
The burden of going forward is on the proponent, but he or she need show only that the signature is genuine and that the formalities were complied with.
One way to rebut the presumption of undue influence is with proof that the will remained in the testator’s custody, unrevoked, for some period after the alleged influence was removed. Also, a well established fondness for or antipathy toward a beneficiary might overcome an otherwise unnatural disposition favoring one beneficiary over others.