Discussion of U.S. Cases on Undue Influence
In an effort to come back to some thoughts and discussion on legal issues, we thought we would refer to an interesting series of U.S. decisions on the issue of undue influence.
As a general observation, when a court wants to find against the contestant/objector, the court emphasizes that there is a lack of direct evidence of undue influence, and when a court wants to find in favour of the contestant/objector, the court emphasizes that direct evidence of undue influence is seldom available.
For example, in Lipper v. Weslow, 369 S.W. 2d 698 (Tex. Civ. App. 1963), commenting on the four traditional elements of undue influence (susceptible testator, confidential relationship, participation in the will making process, and benefit), the court seemed to point to the relatively mundane facts that were led to try to make the undue influence case, e.g., the attorney-son (who was the alleged undue influencer) had a key to his mother's home. Undue influence was not proved.
In Re Swenson, (1980) 617 P.D.2d 305 (Ore. App.), the court listed seven factors in finding undue influence, mostly focusing on the unfairness or unnaturalness of the new will. The court seemed to move to new ground in focusing on a want of conscience on the part of the donee, as opposed to the traditional focus on the lack of consent by the testator.
Many U.S. attorneys also consider the issue of intergenerational dialogue in advance of a death as a way to deal with some aspects of undue influence. The historic penchant for keeping quiet may not be best.
While the U.S. experience is slightly different, the courts seem to follow a consistent and common sense approach to the issue of undue influence.
All the best, Suzana and Ian. --------
