Case Summaries

Wingrove v. Wingrove

This case (summarized on p. 158) provides the canonical statement of the undue influence doctrine. The court does not provide a list of factors to apply, much less a black and white rule. Rather, the passage gives a sense of what is impermissible influence and seems to leaves to future courts the task of hashing out the details.

Estate of Lakatosh

  • Facts: Rose was elderly and didn't see her family much. Roger befriended her. She gave Roger power of attorney and then executed a new will (drafted by Roger's second cousin) leaving most of the $268K estate to Roger. Rose had a "weakened intellect."
  • Issue: Was there undue influence?
  • Holding: Yes.
  • Test:
    • When the proponent of a will proves that the formalities of execution have been followed, a contestant who claims undue influence has the burden of proof.
    • The burden may be shifted so as to require the proponent to disprove undue influence. To do so, the contestant must prove by clear and convincing evidence
      • (1) that there was a confidential relationship,
      • (2) that the person enjoying the relationship received the bulk of the estate, and
      • (3) that the decedent's intellect was weakened.
  • Application of Test: The test was met: (1) confidential relationship since Rose dependent on Roger and gave him power of attorney, (2) Roger got the bulk; (3) Rose had weakened intellect since she didn't stop the consumption of her assets by Roger.

Lipper v. Weslow

  • Facts: Block, the decedent, left a will in which her son Frank, who lived next door to her, got disproportionate share of estate. Grandchildren by a deceased son (Ps) argue undue influence. There was evidence that Frank didn't like Ps' father.
  • Issue: Was there undue influence since the decedent's son drafted it and received a disproportionate share of the estate?
  • Holding: No.
  • Rationale: Block was 81 when she executed the will. She was of sound mind and will. After she executed the will she told 3 disinterested witnesses about her will. She had a right to give a disproportionate share to one son, and she did explain why in the will.
  • Toolbox: Test for Undue Influence -- the influencer exercised such control over T's mind that it overcome her free agency and free will and substituted the will of another to cause T to do what she would not otherwise have done but for the control.
  • Affidavit of Heirship for Sophie Block Exercise
    • Sophie Block Died on Sept. 1963. SB was married three times.
    • Her first husband, Julian Weslow, predeceased the decedent. Only one child was born to or adopted by the decedent during her marriage to Weslow. That child was Julian Jr. and Julian Jr. predeceased the decedent. Julian Jr. was married once, and they had three children and no other children were born to or adopted by the decedent. The three children are all adult and competent.
    • Her second marriage was to Mr. Lipper, who predeceased the decedent. Two choldres were born to or adopted by the decedent during her marriage to Mr. Lipper, and they are still alive and adult and competent.
    • Her third marriage was to Max Block. Max Block survived the decedent."
      • Query: Max seems to get nothing? Why? This is pure conjecture, but they probably had a premarital agreement since they wree married late in life.
      • Paragraph on DJ p. 163 gives a very good overview over the concept of undue influence.

Lipper Questions:

What are the suspicious facts that might support the contestants?
  • An intended beneficiary wrote the will.
Could this suit have been foreseen and anticipated? If so, what could have been done differently to avoid the suit:
  • Non-contest clause: Problem: if the will is declared in invalid in a will contest, what is the purpose of a non-contest clause?. Always some problems with non-contest clauses.
  • Trusts.
  • Why didn't the detailed explanation in the Will suffice?
    • (MHD) Anything factually incorrect in the explanation could be attacked. Also, it was clearly written by the son since it was written in legalese - normal people don't talk like that.
  • Paragraph 8 is an interrorem clause. Why didn't it work?
    • (MHD) An interrorem clause only prevents people who would inherit under the will from contesting. The grandchildren inherited nothing from the will and are arguing that the will is invalid so the clause does not affect them.

What facts support the admission of the Will? (MHD) The fact that the testator told three separate people about her wishes.

Will of Moses

(DJ 170): Undue Influence
Testator Moses devised almost all of her property to Holland, who was Moses' lover (and was also an attorny) and 15 yrs her junior; will was drafted by a independent lawyer with no connection to Holland and who didn't inform Holland of the will; Moses' older sister and closest relative contested the will on grounds of undue influence.
Issue: whether evidence supports that Moses had acted upon the independent advice or counsel of one entirely devoted to her interest such that the presumption of undue influence could be overcome
-> The presumption of undue influence couldn't be overcome because the attorney who drafted Moses' will engaged in no discussion of Moses' relationship with Holland, who her legal heirs might be, etc. and thus gave no meaningful independent advice or counsel.
[How did this presumption arise? I thought the burden was on the contestant?]
Dissent: the majority focuses on suspicious circumstances (e.g. the nature of the relationship between Moses and Holland, Moses' excessive drinking) that were irrelevant to the preparation and execution of the will; all evidence suggests that Moses executed her will deliberately and with the advice of independent counsel and that Holland was not actively concerned with the will.
Note here the date and the location of the case: Mississippi, 1969. This case shows that courts can be very subjective when it comes to the question of undue influence. Maybe the judge involved in this case was just jealous of Holland...? There is a normative prejudice that courts use to rule. Is this okay? Why does the court even see social norms?

From Class:
  • Interesting to look at the rhetoric of this case to see how normative values are in play. "she was completely bemused" by the younger man.
    • If you're going to disinherit blood relatives, you have to at least have a discussion. No discussion of relationship with lover and heirs.
      • Attorney did not go through the intestacy statute with her to have her realize what she was doing.
      • But she doesn't want intestacy. Why should she care?
  • Court suggests that the draftsman ought to be so commited to the normative patterns of distribution that when somebody comes in and wants to do anything out of the ordinary.
  • Give her lecture on intestacy statute??
    • What was Done Right in the Case
      • Independent lawyer
      • Beneficiary/influencer not present and not involved in the will at all.
        • PRACTICE TIP: If you have a beneficiary in the room with the testator during the meetings with the testator, kick out the beneficiary once you find out that the person is an intended beneficiary to the will.
      • Marriage
    • *** Adoption
      • Joint Tenancy
      • Life Insurance Policy
      • Adult Adoption (see Doris Duke case) (can inherit from, but not through, her)
      • Set up a trust
      • Grant a future interest in the property.==Moses.====What was done right?==
***Independent lawyer
  • Given the court's analysis, is there any way that Fannie could have gotten the property to Clarence Holland?
  • What if Fannie had married Holland? Do you think the contest would succeed then?
  • Kaufmann's Will

(DJ 174): Undue Influence
  • Testator Kaufmann left most of his estate to Weiss, who managed Kaufmann's finances and much of his day-to-day affairs and who was also Kaufmann's homosexual lover; along with the will, Kaufmann left a letter to his family, explaining that Weiss had been a dear friend who had given him a contented life; Kaufmann's brother sued to have the will set aside on the grounds of undue influence by Weiss

  • -> The court found undue influence, noting that the record indicated Kaufmann was pliable and easily taken advantage of, that his relationship with Weiss had been one of dominance and subservience, that Kaufmann had relied exclusively on Weiss for the disposition of nearly all material circumstances affecting his life, and that Weiss was willed almost the entire estate

  • Seward Johnson's Estate

(DJ 176)
  • Seward Johnson, heir to the Johnson & Johnson fortune, married Basia, a Polish woman 40+ years his junior who had been hired as a cook at his estate; Johnson's last will left Basia almost everything tangible and $75 million in a trust but left Johnson's six children nothing (though he had already established trusts for them); Nina Zagat, the attorney who drafted this will, stood to gain a $4 million executor's commission and $500,000 annually in trustee's fees for the duration of Basia's life; (more details about the will signing and documentation of Johnson's mental capacity are on pp. 180-82)

  • The six Johnson children and the Harbor Branch Foundation (research center established by Johnson) contested the will, arguing that Johnson lacked the capacity to make a will and that it was the result of undue influence by Basia, who was acting in concert with Zagat

  • -> The case settled, resulting in each child getting $6-7 million, Basia getting $340 million outright (the trust was eliminated), and Zagat getting a reduced executor's commission of $1.8 million
  • See some background information about the case, particularly about Nina Zagat's cross-examination:

  • Background notes on fraud:

Fraud occurs where testator is deceived by misrepresentation and does that which testator wouldn't have done had the misrepresentation not been made

  • Misrepresentation must be made with both intent to deceive the testator and the purpose of influencing testamentary disposition

  • Will provisions procured by fraud are invalid; remaining portion of the will stands unless fraud goes to entire will or portions invalidated by fraud aren't severable from the rest of the will

  • As an alternative to refusing probate, a will may be probated and then a court can impose a constructive trust on the beneficiaries to remedy unjust enrichment caused by the fraud

  • Types of fraud:
  • Fraud in the inducement - occurs when a person misrepresents facts, causing the testator to execute a will, include particular provisions in the wrongdoer's favor, or refrain from executing or revoking a will
  • Fraud in the execution - occurs when a person misrepresents the character or content of the will, which does not actually carry out the testator's intent

  • Puckett v. Krida

(DJ 187): Fraud
  • Two nurses were hired to provide 24-hr care for the testator after she returned home from being hospitalized for Alzheimer's

  • -> The court set aside a deed and a will favoring the nurses as products of fraud and undue influence; that the nurses had a confidential relationship with the testator and had encouraged the testator's false beliefs that her relatives were wasting her money and wanted to place her in a nursing home was sufficient to raise a presumption of undue influence and fraud, which the nurses could not rebut

  • The court noted that the nurses systematically isolated the testator from family and friends, limited information available to her, and fostered the fear that her family was misappropriating her funds and would place her in a nursing home to the point that she began to oppose her family

  • Latham v. Father Divine

(DJ 189)
  • Testator, a follower of a religious cult, left a will that gave almost her entire estate to Father Divine, who was the leader of the cult, and to others associated with the cult

  • The will had been probated, and the plaintiffs (first cousins but not testator's next of kin) alleged that testator had intended to revoke the will and to execute a new will in favor of them, but that the defendant beneficiaries' undue influence and physical force (plaintiffs alleged that the defendants had conspired to kill, and did kill, the testator through a surgical procedure performed by a doctor engaged by the defendants w/o the consent or knowledge of any of the testator's relatives) had prevented the testator from executing the new will

  • Plaintiffs sought to have the property passing under the probated will placed in a constructive trust

  • -> The court reinstated the plaintiffs' complaint and deemed constructive trust the appropriate remedy to prevent unjust enrichment

  • Background notes on tortious interference with expectancy:

Under the theory of tortious interference with expectancy, plaintiff must prove that the interference involved tortious conduct in itself (e.g. fraud, duress, or undue influence); this theory cannot be used when the challenge is based on the testator's mental incapacity
  • This theory does not involve a will contest, and thus, no-contest / in terrorem clauses in wills do not apply here

  • Marshall v. Marshall

(DJ 194): Tortious Interference with Expectancy
  • Anna Nicole Smith married J. Howard Marshall, who had repeatedly promised before and after the marriage that he would give her half of his wealth

  • Marshall's son restricted her access to his father's money by depleting J. Howard's assets through the purchase of deferred annuities on J. Howard's life, who was then 90 years old and seriously ill

  • Issue: whether Marshall's son had tortiously interfered with J. Howard's inter vivos gifts to Smith

  • -> The court found that Marshall's son had tortiously interfered with Smith's expectancy by applying this test:
  • A plaintiff must prove 1) the existence of an expectancy; 2) reasonable certainty that the expectancy would've been realized but for the interference; 3) intentional interference with that expectancy; 4) tortious conduct involved with the interference; and 5) damages


Restatement (Third) of Property

  • (a) A donative transfer is invalid to the extent that it was procured by undue influence, duress, or fraud.

  • (b) A donative transfer is procured by undue influence if the wrongdoer exerted such influence over the donor that it overcame the donor's free will and caused the donor to make a donative transfer that the donor would not otherwise have made.


  • The existence of a confidential relationship is not sufficient to raise a presumption of undue influence. There must also be suspicious circumstances surrounding the preparation, execution, or formulation of the donative transfer. Suspicious circumstances raise an inference of an abuse of the confidential relationship.

  • In 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 alleged 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.

  • Class Discussion

Some take-away points from the web seminar on undue influence:
  • The focus of undue influence is about a process rather than an event and about the behavior of others rather than the testator.

  • Possible sources of undue influence: cults, domestic abuse

  • Indicators of undue influence: limiting the privacy of the individual, multiple persuaders, excessive demands for completion, emphasis on the consequences of delay, discussions about the will at unusual times and places

  • The Mary Ellen Bendtsen case is a prime example of undue influence.

  • 3 Hypotheticals:
    • 1) A father believes his daughter has died, though she has not. He cuts her out of her will.
    • 2) A father is sent a letter that his daughter has died in a car accident. Later, it turns out the recovered body was not hers. She shows up at his funeral, and is shocked to discover she is not in the will.
    • 3) The same letter is sent, but this time by the father's son, so he inherits all.
  • What are the outcomes?
    • 1) If the father has a legitimate reason to cut her out (ex: he is angry because she put him in a home), then the court will likely find that his will should stand
    • 2) This is MISTAKE--in cases of mistake, the court is unlikely to invalidate the will
      • What can the daughter do?
        • If the siblings get along well, the brother can disclaim half his inheritance. BUT, then it goes to his kids. If they are adults, they can disclaim as well--then the sister has a chance to inherit. But if the brother's kids are minors, a guardian will be appointed for their share. The guardian canNOT disclaim, as it would not be in the kids' best interests!
    • 3) This is FRAUD--the half of the money the son inherited fraudulently will be put in a constructive trust.

  • Commentary

Here is a link to a Web Seminar on Undue Influence. This is also posted on Chalk.
What steps can you take to avoid a Will Contest?
  • From DJ 183-84:
  • 1. The attorney could request that the client write, in the client's handwriting, a letter to the attorney that expresses in detail the disposition the client wants to make. The attorney then replies, detailing the consequences of the disposition on the client's heirs, emphasizing any disinheritance, and asking for a letter espousing the reasons for the disposition. After the attorney receives this second letter, s/he drafts the will as the client wants. The attorney should keep a file of these letters.

  • 2. The attorney could videotape or record a discussion between the testator and the attorney and before witnesses, discussing reasons for disposing the property in the manner provided in the will. The witnesses then execute affidavits stating why they believe the testator is of sound mind and acting of the testator's own accord.

  • 3. Substantial documentation of the testator's mental capacity (as done in Seward Johnson's Estate)

  • 4. No-contest (in terrorem) clause in the will, which stipulates that a beneficiary who contests the will shall take nothing or a token amount instead of the provisions made for the beneficiary in the will. This will not protect the intentions of the testator, though, if the will is invalidated. It may be useful to include a no-contest clause in other instruments under which the beneficiaries take.
    • Also, no contest clauses are only effective if the potential contestant has received enough to not make it worthwhile to challenge the will. Usually "enough" = (amount received if they win) x (probability of winning) - (costs of litigation)
  • 5. pre-mortem probate proceeding if available.
  • From class discussion: execute a series of wills (as done in Seward Johnson's Estate), so that those contesting the will are forced to challenge each prior will in addition to the last will.
  • No Contest Clauses

How can you get around them?
  • You could try to get the will invalidated on such grounds as undue influence or lack of mental capacity, in which case the no-contest clause would be invalid as well.