CSG Law Alert: Undue Influence: What to Know When It Comes to Will Contests
Contesting a Will is never easy but a beneficiary asserting a claim of undue influence has many hurdles to overcome to challenge a Will successfully. The claimant will have to establish that the testator was subjected to the control of another and not acting of his or her own free will.
In New Jersey, undue influence is the mental, moral or physical exertion of a kind and quality that destroys the free will of a testator (the individual creating the Will) by preventing that person from following the dictates of his or her own mind as it relates to the disposition of assets, generally by means of a Will or inter vivos (lifetime) transfer. In re Estate of Stockdale, 196 N.J. 275, 303 (2008). Undue influence denotes conduct that causes the testator to accept the domination and influence of another rather than follow his or her own wishes. Ibid. Undue influence is a pernicious tort that has been referred to as a species of fraud. In re Alleged Will of Landsman, 319 N.J. Super. 252, 276 (App. Div. 1999).
Factors that the Court will consider for an undue influence claim are the testator’s age, mental capacity, vulnerability and the amount of control the influencer exercises over the testator – i.e., did the influencer control the testator’s finances, health care needs and/or living arrangements?
The burden of proving undue influence is on the Will contestant and the standard for the burden of proof is a preponderance of the evidence. Stockdale, supra, 196 N.J. at 303. However, if the party who stands to benefit from the will had a confidential relationship with the testator and there are additional “suspicious” circumstances, there is a presumption of undue influence and the burden shifts to the party who had the confidential relationship. In re Rittenhouse’s Will, 19 N.J. 376, 378-379 (1955).
There is a confidential relationship if the testator “by reason of … weakness or dependence” reposes trust in the particular beneficiary, or if the testator and beneficiary occupied a “relationship in which reliance was naturally inspired or in fact existed.” In re Hopper, 9 N.J. 280, 282 (1952). A confidential relationship generally encompasses all relationships whether legal, natural or conventional in their origin. In re Estate of Folcher, 224 N.J. 496 (2016). The suspicious circumstances need only be slight. Rittenhouse’s Will, supra, 19 N.J. at 379.
If the presumption of undue influence arises from “a professional conflict of interest on the part of an attorney, coupled with confidential relationships between a testator and the beneficiary as well as the attorney,” the presumption must be rebutted by clear and convincing evidence. Haynes v. First Nat’l State Bank, 87 N.J. 163, 183 (1981). Attorneys are held to a higher standard because an attorney-client relationship is inherently confidential. Stockdale, supra, 196 N.J. at 304.
An attorney or any other fiduciary that is found to have exerted undue influence over a testator will be liable for attorney fees incurred by the estate. This shifting of fees is a carved-out exception to the “American Rule” which prohibits recovery of counsel fees by the prevailing party against the losing party in litigation. In re Niles, 176 N.J. 282 (2003). However, the New Jersey Supreme Court has declined to extend the exception to a non-fiduciary who has exerted undue influence. In re Folcher, 224 N.J. 496 (2016).
Factors that will assist in a defense against undue influence are evidence from witnesses that the testator was acting of his or her own volition when he or she executed the Will, testimony from doctors that the testator possessed requisite mental capacity at the time of the execution of the Will and evidence that the influencer did not substantially benefit under the terms of the Will.