Money & the Law: ‘Undue influence’ a squishy legal concept
Last week I told you about one of the issues that often shows up in will contest cases — the need for the maker of a will to be of “sound mind.” This basically means a person making a will must, at least to a limited extent, know what he or she is doing. Also, to be of sound mind, a will maker cannot be suffering from an “insane delusion,” defined as a persistent belief “in the existence or nonexistence of something that is contrary to all evidence.” (As noted last week, there would seem to be lots of insane delusions running loose these days.)
Another issue regularly showing up in will contest cases is “undue influence,” also a squishy legal concept. Undue influence is defined as “words or conduct, or both, which, at the time of the making of a will, deprived the person making the will of free choice; and caused the person making the will to make it or part of it differently than he or she otherwise would have.”
Courts attempting to further define the meaning of undue influence have said “influence gained by means of love, affection or kindness, or by appeals to such feelings, is not undue influence.” And, “undue influence cannot be inferred solely because one or more persons may have had a motive or an opportunity to influence” the making of a will.
In an undue influence case, evidence that a person named to receive something under a will was actively involved in the preparation of the will and was in a close and trusting relationship with the will maker (such as a caregiver — or a lawyer) is given greater weight than other evidence. And, in a jury trial, jurors receive an instruction specifically authorizing them to consider such evidence. Jurors are also told, however, that the existence of a close and trusting relationship does not alone prove undue influence. To further complicate their deliberations, jurors are told that the fact that a will contains provisions different from what they think “would be proper” is not grounds to invalidate a will based on undue influence.
Cases contesting a will inevitably involve circumstantial evidence, since the person who knows most about the situation is dead. Circumstantial evidence is evidence from which the existence or nonexistence of other facts can reasonably be inferred. Other evidence is called “direct” evidence and jurors are told the law makes no distinction between direct evidence and circumstantial evidence.
Bottom line, will contests based on lack of capacity or undue influence usually end up being expensive gambling events with unpredictable outcomes. And the loser can’t count on getting help from an appeal. Appellate courts must honor a jury’s findings of fact and, as long as the instructions given the jury were proper, there’s little room for an appellate court to change the outcome of a trial. Also of significance is that the instructions given the jury, confusing though they might be, come from the Colorado Supreme Court and a trial court is required to use them.
These are some of the reasons why will making needs to be done in a careful and thoughtful manner and why, if a dispute does arise, settlement is likely to be a better strategy than a lawsuit.
Jim Flynn is a business columnist. He is of with the Colorado Springs firm Flynn & Wright. He can be contacted at moneylaw@jtflynn.com.
Money & the Law columnist Jim Flynn. THE GAZETTE FILE
