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Understanding Undue Influence in Will Execution and the Role of Attorneys

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This article explores the basic elements of undue influence in the context of wills, emphasizing how influence can subvert a testator’s mind and result in them executing a will they may not have otherwise chosen. It discusses the distinction between direct and circumstantial evidence, outlining key proof aspects including unnatural dispositions, opportunity for influence, relationships, and the susceptibility of the testator. Additionally, it reviews consequences for attorneys who draft wills and also benefit from them, highlighting exceptions and relevant regulations.

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Understanding Undue Influence in Will Execution and the Role of Attorneys

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Presentation Transcript

  1. Undue Influence

  2. Basic Elements • 1. Influence • Existence • Be exerted

  3. Basic Elements • 2. Subvert testator’s mind • “Resistance is futile”

  4. Basic Elements • 3. Causation • Testator executed a will testator would not have executed but for the influence.

  5. Proving Undue Influence • 1. Direct Evidence • Rare

  6. Proving Undue Influence • 2. Circumstantial Evidence • a. Unnatural disposition

  7. Proving Undue Influence • 2. Circumstantial Evidence • a. Unnatural disposition • b. Opportunity (access)

  8. Proving Undue Influence • 2. Circumstantial Evidence • a. Unnatural disposition • b. Opportunity (access) • c. Relationship

  9. Proving Undue Influence • 2. Circumstantial Evidence • a. Unnatural disposition • b. Opportunity (access) • c. Relationship • d. Susceptibility/ability to resist

  10. Proving Undue Influence • 2. Circumstantial Evidence • a. Unnatural disposition • b. Opportunity (access) • c. Relationship • d. Susceptibility/ability to resist • e. Beneficiary connected with will preparation or execution.

  11. Effect of Mere Opportunity • Rothermel v. Duncan – p. 248 • Note 6, p. 253 • Note 7, p. 253

  12. Mortmain Statute • Statute which limits gifts to charity under specified circumstances. • Often held to be unconstitutional under 14th Amendment’s equal protection clause. • Texas does not have one.

  13. Attorney as Will Drafter and Beneficiary -- Impact on Gift -- § 58b • Gifts deemed void: • 1. To drafting attorney. • 2. To attorney who supervised will preparation. • 3. To parent of # 1 or # 2. • 4. To descendant of #1 or #2. • 5. To employee of #1 or #2. • 6. To spouse of any of the above.

  14. Attorney as Will Drafter and Beneficiary -- Impact on Gift -- § 58b • Exceptions: • 1. Beneficiary is testator’s spouse. • 2. Beneficiary is testator’s ancestor. • 3. Beneficiary is testator’s descendant. • 4. Beneficiary is related to testator within 3rd degree (blood or marriage). • 5. BFP from “prohibited” beneficiary.

  15. Attorney as Will Drafter and Beneficiary -- Impact on Law License • Texas Rules of Professional Conduct 1.8(c) • Presumption – violates Rules • Impact – Gift not automatically voided but attorney subject to discipline

  16. Attorney as Will Drafter and Beneficiary -- Impact on Law License • Beneficiaries within scope of prohibition: • Attorney • Parent of attorney • Child of attorney • Sibling of attorney • Spouse of attorney

  17. Attorney as Will Drafter and Beneficiary -- Impact on Law License • Exceptions: • 1. Gift not substantial. • 2. Testator related to beneficiary.

  18. Attorney as Will Drafter and Beneficiary -- Advice • Don’t do it, even for family members.

  19. Attorney as Will Drafter and Beneficiary -- Cases • Shields – p. 255 • Jones – p. 259

  20. Duress • Same as undue influence but connotes physical (as compared to cerebral) pressure.

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