Undue Influence.

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Presentation transcript:

Undue Influence

Basic Elements 1. Influence Existence Be exerted

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

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

Burden of Proof The burden of proof to show undue influence is on the contestant.

Proving Undue Influence 1. Direct Evidence Rare

Proving Undue Influence 2. Circumstantial Evidence a. Unnatural disposition

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

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

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

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.

Effect of Mere Opportunity Rothermel v. Duncan – p. 234 Note 6, p. 238 Note 7, p. 238

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.

Attorney as Will Drafter and Beneficiary -- Impact on Gift Gifts deemed void EC § 254.003 1. To drafting attorney. 2. To attorney who supervised will preparation. 3. To parent of #1 or #2. 4. To descendant of parent of #1 or #2. 5. To employee of #1 or #2. 6. To spouse of any of the above.

Attorney as Will Drafter and Beneficiary -- Impact on Gift 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.

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

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

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

Attorney as Will Drafter and Beneficiary -- Cases Shields – p. 240 Jones – p. 243

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

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