It can be very frustrating to learn that a loved one, perhaps a widowed parent, has left what would otherwise be the family inheritance to someone that may have manipulated the person to leave the money and assets to them. Even if the donor has the mental competence to make the gift it is possible he or she is being unduly influenced to do so. However it is very difficult to show the influence was “undue” so as to void the gift.
A claim of undue influence alleges that the testator/donor was coerced or improperly influenced by a third party into making a gift, Cass, 143 N.H. at 60, or a will, Bartlett v. McKay, 80 N.H. 574, 574 (1923). The undue influence must be of such a character and nature that the testator’s free agency is destroyed. See Whitman v. Morey, 63 N.H. 448, 453 (1885). “Undue influence, which will void a will, is not merely persuasion, but the use of such appliances and influence as to take away the free will of the testator – to substitute another’s will for his; so that the instrument is not the expression of the wishes and determination of the testator in the disposal of property, but those of another; that, to officiate the will, the influence must amount to force and coercion, destroying free agency.” Boardman v. Woodman, 47 N.H. 120, 123 (1866), ovr’d on other grounds, Hardy v. Merrill, 56 N.H. 227 (1875); see also Cass, 143 N.H. at 60-1 (adopting similar definition for undue influence in an action to set aside an inter-vivos gift). Ultimately, “whether undue influence exists is a question of fact to be determined based upon the surrounding facts and circumstances.” Cass, 143 N.H. at 60.
Love and affection between the testator/donor and donee does not show undue influence. See Boardman, 47 N.H. at 123 (undue influence is “not . . . merely the influence of affection and attachment, or merely the desire of gratifying the wishes of another). In like vein, an unequal disposition of property to the testator’s heirs does not show undue influence, if the unequal disposition was the result of the testator’s greater love of one heir versus another. See Bartlett, 80 N.H. at 574-5. See also In re: Estate of McIntosh, 146 N.H. 474, 479 (2001) (fact that one family member believes he or she is more entitled to the money than the transferee does not show undue influence).
Showing that a person had the opportunity to influence the testator or donor is not enough as the party seeking to set aside the transaction must show undue influence was actually practiced. See Bartlett, 80 N.H. at 575 (“opportunity and ability to exercise control are not themselves sufficient to establish undue influence [as] the question remains, was there evidence tending to show the successful exercise of such control”). Undue influence is more than a person attempting to persuade the testator/donor into a particular course of action. See Albee v. Osgood, 79 N.H. 89, 92 (1918). Instead, it must be the assertion of such control and influence, that the testator/donor’s ability to think for him or herself is destroyed. See Cass, 143 N.H. at 60-1.
Verbal threats and abuse have been held to be sufficient to establish undue influence. See Ford v. Ford, 89 N.H. 292, 294-5 (1938) (defendant threatens to commit testator to an insane asylum unless a will is drafted according to his wishes); Gaffney, 81 N.H. 302-4 (1924) (defendant threatens to throw testator out of her house unless she makes a will according to his wishes).
Undue influence may have occurred if the defendant dictates the terms of the will, on behalf of the testator, to the testator’s lawyer. Edgerly v. Edgerly, 73 N.H. 407, 409 (1905).
Undue influence may also be found when the testator is weak minded or mentally infirm. Ford v. Ford, 89 N.H. 292, 293-5 (1938).
“Undue influence . . . is not merely persuasion, but the use of such appliances and influence as to take away the free will of the testator – to substitute another’s will for his; so that the instrument is not the expression of the wishes and determination of the testator in the disposal of his property, but those of another . . . the influence must amount to force and coercion, destroying free agency.” Boardman v. Woodman, 47 N.H. 120, 123 (1866), ovr’d on other gds., Hardy v. Merrill, 56 N.H. 227 (1875); accord In re: Estate of Cass, 143 N.H. 57, 61 (1998) (“the influence that a donee asserts over a donor must amount to force or coercion that alters the donor’s will and must be more than mere influence or affection”).
Undue influence can be found if the respondent socially isolates the testator, see Bartis v. Bartis, 107 N.H. 34, 36 (1966) (respondent prevents other members of family from contacting testator), lies to the testator about his or her financial situation, see Cass, 143 N.H. at 61-2 (respondent gives donor incorrect information regarding her assets); or provides the sole source of financial information to the testator, Bartis, 107 N.H. at 36-37 (testator entirely dependent upon respondent for financial decisions).
In Lunderville, the decedent executed a will that left his entire estate to his neighbors. 119 N.H. at 309 (1979). The decedent’s children challenged the will, arguing it was the product of undue influence. Id. The evidence at trial showed the decedent and his neighbors were friends, and the neighbors often helped the decedent care for his property. Id. The decedent, thought highly of his friends, id. at 310, and apparently had a much better relationship with them than his own family. In fact, when the decedent became ill, the neighbors allowed him to move in with them versus having the decedent move into a nursing home. Id. at 309. Up until his death, the decedent was a strong-willed man who had his own doctor and attorney. Id. at 309-10. As the Lunderville Court noted:
The fact that the Dolloffs received much more for their services than those services might have been worth on the market does not in and of itself justify the imposition of a constructive trust. Lunderville was entitled to convey his property to them for little or nothing, and there was evidence that he thought highly of them and liked them and their children.
On the whole, the evidence does not require ‘a finding of influence, acquired and abused, or a confidence, reposed and betrayed.’ (citation omitted). The testator, although in ill-health and aware of the seriousness of his illness, was free to conclude that it was in his best interest to live with the Dolloffs rather than in a nursing home. Even if he was not sure of how long he had to live, he could freely decide to convey his farm to the couple in return for their promise to care for him for the remainder of his life.
Id. at 310-11 (emphasis added).
I have litigated for, and advised, clients who both asserted undue influence claims and in other cases defended the one who received the gift from the undue influence claims from the heirs who thought the donor should had left the money or assets to them as his relatives. The Court will not merely state that the relatives are entitled to the “family inheritance”. If the donor is widowed, the money and assets the couple accumulated during their lives that went to the donor on his or her spouse’s death are his or hers to do with as he sees fit with no obligation to leave a “family inheritance” to his or her children. The litigation issue is usually limited to whether he or she had the mental competency to make a gift (including one in a Will) or whether the influence by the donee was “undue”, within the legal meaning set forth above.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].