Undue influence is a process, not an event. It is very fact dependent and often occurs in secret. Undue influence presupposes that the individual had capacity. One must be competent to be subject to undue influence in a will contest case. While capacity must exist for undue influence to occur, it often occurs when there is diminished capacity. This may be because vulnerability, isolation and dependency are factors routinely present in undue influence cases. While reduced cognition may be a factor in certain undue influence cases, it’s not a necessary element.
The Presumption of Undue Influence in a Will Contest Case:
The law recognizes the difficulties of establishing undue influence because the same usually occurs in isolation and secrecy. As a result, the presumption, in New Mexico, is an evidentiary mechanism intended to level the playing field. The presumption of undue influence may be established by demonstrating the:
1. Existence of a confidential or fiduciary relationship with the individual;
2. Fiduciary had an opportunity to influence the individual’s decision in the transaction;
3. Fiduciary or an interest he/she represents benefited from the transaction.
The benefit of obtaining a determination that the presumption applies may be that it generally provides an opportunity to present the case to a fact-finder. An additional benefit of the presumption is that it may provide probable cause for a challenge sufficient to neutralize a no contest cause in a will. Historically, establishment of the presumption provided an inference of undue influence even if sufficient evidence was brought forth by the proponent to rebut the presumption.
Suspicious Circumstances in a Will Contest Case:
Circumstances are deemed “suspicious” in an undue influence or will contest case are based upon a review of the totality of the facts and not any one fact in isolation of others. It is possible that, in some circumstances, the existence of even a single credible mitigating factor may negate the potential impact of the existence of a multitude of suspicious circumstances. In undue influence cases a challenger often relies upon suspicious circumstances to prove their case due given the nature of undue influence. In these cases, the challenger often has no control or access to direct evidence and transactions generally occur in secret. The Restatement (Third) of Property (Wills & Don. Trans) Section 8.3 cmt. h, provides that: ”[i]n evaluating whether suspicious circumstances are present, all relevant factors may be considered, including: (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 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.” No exhaustive or all-inclusive list of “suspicious circumstances” exists. Moreover, the existence of such indicia may not, necessarily be determinative of the outcome. There are some generally recognized circumstances that are viewed as suspicious. It’s important to understand that even though an individual’s vulnerabilities to undue influence generally appear throughout these lists, the existence of such vulnerabilities will not necessarily be determinative that undue influence occurred.
It may be important to understand and be able to identify certain key concepts when reviewing circumstantial evidence of suspicious circumstances. These concepts include, but are not limited to the following:
1. “Vulnerability” – age, impaired mental and/or physical condition – dementia, depression, anxiety, delirium, mood, substance abuse
2. Dependency
3. “Isolation” – imposed by another or the natural result of technological or other challenges or other conditions. Such isolation may result merely from limitations in movement and locale to withholding mail; limiting telephone access; limiting visitation or limiting privacy when victim is with others (“chaperoning”);
4. “Lack of Independent Advice or Counsel” – which can be the result of, among other things, who contacted, arranged for, communicated with the lawyer, and/or whether counsel breached a duty of loyalty to the individual, and even whether such “counsel” took sufficient steps to assure the capacity of the individual and the independence of the plan generated.
5. “Conduct of the beneficiary” – which can relate to patterns of behavior and/or actions of the beneficiary, before, during as well as after the execution of the instrument.
6. Other selected suspicious circumstances may include the existence of:
A) confidential relationship between the perpetrator and victim
B) mental inequality between victim and perpetrator
C) financial dependence
D) advanced age (typically over 75)
E) shift of power equation F) highly “medicalized” or acute care settings
G) substance abuse H) sleep deprivation I) living with or dependence upon an abusive individual
J) active involvement procuring the instrument (active procurement), including:
(1) obtaining a lawyer for the victim
(2) securing the witnesses
(3) beneficiary knows contents of the will before execution
(4) beneficiary gives lawyer instructions on preparation of the will
(5) presence of the beneficiary at the execution of the will
K) secrecy concerning transactions or legal changes
L) events occurring in haste or at abnormal times or an abnormal place
M) changes in the identified victim’s attitude toward others
N) change in values
O) family conflict
P) recent bereavement
Q) sexual bargaining
R) food enticements for person unable to swallow or on a trach
S) fear of abandonment or changed living situations
T) implied promise by perpetrator to care for the person
U) “unnatural” terms new legal instrument (new will, new trust, etc.)
V) anonymous criticism of other potential beneficiaries
W) suggestion, without proof, that other beneficiaries threatened harm;
X) use of multiple persuaders;
Y) using victim’s assets – such as property, money, credit cards and/or access to accounts
Z) becoming fiduciary (conservator, trustee, executor) or named on Power of Attorney forms;
It’s important to remember that undue influence cases are extremely fact specific. The existence of various red flags or indicia of undue influence may be undercut by a single mitigating or countervailing factor in some circumstances. Moreover, it’s generally the quality of the evidence not quantity of the evidence when weighting mitigating factors against existing suspicious circumstances.
Contact a Business Litigation and Estate Litigation Attorney in Santa Fe
If you need assistance resolving a will contest dispute, our Santa Fe business litigation lawyers can assist you. We have experience handling a wide variety of business and estate disputes and can discuss options for resolving the legal issues you are facing. Contact Slate Stern Law today for more information.