Undue Influence — or Not?

David Allen
Partner, Jaburg|Wilk Attorneys at Law


Has it ever crossed your mind — even if only for a moment — that if you are extra super nice to rich old Aunt Harriet (or whomever the “Aunt Harriet” in your life may be), who is getting up there in years, never had any children, and managed to accumulate a sizable estate, that maybe, just maybe, she will leave a nice portion of her estate to you? Many lawsuits have arisen in Arizona and elsewhere over the issue of whether the money Aunt Harriet did, in fact, leave someone was the result of her acting out of the goodness of her heart or was caused by the “undue influence” of the person who benefited from the bequest.

In Arizona, undue influence is defined as “conduct by which a person unduly influences a testator in executing a will, when that person through his or her power over the mind of the testator makes the testator’s desires conform to his own, thereby overmastering the volition of the testator.” (Parrisella v. Fotopulos.) How, you might wonder, can a court possibly determine whether the undue influencer possessed and used such “power” in said manner? In that the testator is almost always already deceased when the challenged conduct comes to light, the courts are left to consider circumstantial evidence, taking into consideration the following eight factors:

  1. Whether the person being benefited has made any fraudulent representations to the deceased;
  2. Whether the will or trust was hastily executed;
  3. Whether such execution was concealed;
  4. Whether the person benefited was active in securing the drafting and execution of the will or trust;
  5. Whether the will or trust was consistent with prior declarations of the testator;
  6. Whether the provisions were reasonable rather than unnatural in view of the testator’s attitude, views, and family;
  7. Whether the testator was susceptible to undue influence; and
  8. Whether there existed a confidential relationship between the testator and the person allegedly exerting undue influence.

None of these eight factors alone are more important than the others; nor does the party attempting to prove undue influence need to prove the existence of all eight factors in order to prevail. If, however, the person challenging the will or trust is able to prove factor 4 (that the person benefited was active in procuring the drafting and execution of the will or trust) and factor 8 (that a confidential relationship existed) and the person benefited is the principal beneficiary of the challenged will or trust, then the challenger is given the huge advantage of a presumption of undue influence, which then must be disproven by the alleged influencer by a preponderance of evidence.

If you find yourself in a situation in which you think you might become the beneficiary of your own Aunt Harriet, you would be well advised to refrain from getting involved in her estate planning in any manner, such as driving her to her attorney’s office. Also, take steps to document — preferably through letters or emails from her — that she is acting of her own free will and not as a result of any influence from you.