Articles

Undue Influence

by John A. Selzer

Will Contest - Undue Influence

Where a will is contested on the grounds of undue influence exercised on the testator, the contestants of the will have the burden of establishing the undue influence. See Neb. Rev. Stat. §30-2331. The essential elements of undue influence sufficient to defeat a will are:

1. That opportunity to exercise undue influence exists;

2. That the testator was susceptible to such influence;

3. That there was a disposition to exercise undue influence for an improper purpose; and

4. That the result clearly appears to be the effect of such influence.

See In re Bainbridge’s Estate, 151 Neb. 142, 36 N.W.2d 625 (1949).

It is not material when the undue influence was exercised if it was present and operating on the mind of the testator at the time the will was executed. Thus, it can be found that a person exercised undue influence on a testator by dominating the testator’s mind, even though the person was not present when the will was made. See 79 AmJur 2d Wills, §378.

Undue influence is largely a matter of inferences from facts and circumstances surrounding the testator, the testator’s life, character and mental condition, and the opportunity existing for the exercise of improper control. See In re Bainbridge’s Estate, 151 Neb. 142, 36 N.W.2d 625 (1949).

In evaluating the testimony, and proper inferences therefrom, it is not always possible to apply the evidence tending to establish undue influence solely to one of the essential elements. A piece of evidence produced by the contestants may establish more than one of the essential elements of undue influence. The Nebraska Supreme Court in In re Bainbridge’s Estate, 151 Neb. 142, 36 N.W.2d 625 at 633 (1949), stated as follows:

In evaluating the testimony and proper inferences therefrom, it is not always possible to apply the evidence tending to establish improper inference which is referable to the will solely to one of the essential elements. Parts of the evidence tending to show undue influence may have probative value as to the existence of one or more of the elements thereof. A will containing unnatural provisions and gross inequality of distribution of the estate of the testator inconsistent with his duty to the members of his family, may afford evidence or inference that the testator was a person susceptible to influence, a disposition on the part of the beneficiary under the will to influence him, and that the exercise of the will may have been brought about by the exercise of improper influence . . . Likewise, evidence tending to show that the regard and affection of the maker of the will for those named by him in a previous will as beneficiaries was destroyed during the time the testator was in association with and under obligation to the person against whom influence is charged may have probative value in justifying a finding that the testator was subject to improper influence, that the person charged therewith may have had a disposition to exercise such influence, and that the will was a result of the influence so exercised. It is permissible, therefore, not to strive to separate each fact supported by evidence offered as proof of undue influence and allocate it under one or more of the four essential elements requisite to establish the exercise of undue influence, but to view the entire evidence offered by the contestants as proof of this issue and rest the decision upon whether or not the evidence as a whole is of such substantial nature as to contain some proof of each of the essential elements, and to require that the issue of undue influence be submitted to and be determined by a jury.

Suspicious circumstances combined with a confidential or fiduciary relationship raise a presumption of undue influence and the burden of going forward with the evidence then shifts to the opposite party. In re Estate of Novak, 235 Neb. 939, 458 N.W.2d 221 (1990). The burden of proof remains on the contestant and the presumption of undue influence sustains the burden of proof until evidence is presented by the proponent rebutting the presumption. See In re Estate of Novak, supra.

When a will is contested on the ground of undue influence, the primary question is whether or not the testator was unduly influenced at the particular time the will was executed. With regard to evidence tending to show the elements of undue influence subsequent to the execution of the will, the following statement from In re Heineman’s Estate, 144 Neb. 442, 13 N.W.2d 569 at 572 (1944), is relevant:

Evidence of undue influence subsequent to the execution of the will is not properly admissible until (emphasis added) there is competent evidence of undue influence at the time the will was executed, unless it follows so closely as to have evidentiary value. Such evidence may corroborate the existence of undue influence when the will was made, but it is insufficient, standing alone, to sustain such issue.

Once evidence of undue influence existing at the time of the execution of the will is established, it would not be improper to admit evidence of the elements of undue influence arising subsequent to the execution of the will to corroborate the existence of undue influence when the will was made.