Definition: Undue Influence

Undue influence is interference with the testator by another party to the extent that the testator does not act under his or her own free will or volition in deciding the content of his or her will. The essence of a will is that it is an instrument through which the testator is able to carry out his or her intent with regard to what becomes of his or her estate after death. Therefore, if a will is executed under circumstances where evidence shows that the testator’s intent was influenced enough that it was not truly his or her own, it is grounds for a will contest, and may result in the will being invalidated by a court. Generally, undue influence is suspected when one beneficiary receives gifts that are surprising to the other beneficiaries (typically because the gifts are extremely generous in comparison) or there is a beneficiary named in the will that none of the other beneficiaries or family members of the testator have ever heard of.

There is no statutory definition of undue influence in Washington, and courts have not articulated a clear standard of what it is. Evidence of undue influence is almost always circumstantial — there is often scant direct evidence and, of course, the testator is no longer around to provide testimony. To determine whether or not a will (or any part of a will) should be invalidated because of undue influence, the court analyzes several factors as they relate to the specific facts of the drafting and the execution of a will. The factors are:

1. whether or not a beneficiary had a fiduciary or confidential relationship with the testator;
2. whether or not a beneficiary participated in the procurement or preparation of the will;
3. whether or not a beneficiary receives an unusually or unnaturally large part of the estate;
4. the age, condition, and mental vigor of the testator;
5. the nature and degree of the relationship between the testator and beneficiary;
6. the opportunity to exert undue influence; and
7. the naturalness or unnaturalness of the will.¹

Each factor need not be established to prove undue influence. The court will weigh the totality of the factors in making its decision.

The court will also consider miscellaneous circumstantial evidence, such as prior wills or similar instruments, if any, and prior actions or statements of the testator, to determine if they are consistent with the contested will. In addition, undue influence need not be directly between the beneficiary and the testator; a beneficiary can exert undue influence through a third party.

Keep in mind that one beneficiary simply exerting influence over the testator may not qualify as undue influence. Consider the following scenario:

Darryl is a widower and has five children. His son, Marcus, lives two blocks away and in the final few years of Darryl’s life visits every day, helps him run errands, drives him to doctor’s appointments, etc. Marcus also has a very strong personality and sometimes butts heads with his siblings. When Darryl dies, he leaves 40% of his estate to Marcus and the other 4 siblings each get 15% shares.

If any of Marcus’s siblings filed a will contest, though some of the factors listed above are present, and Marcus undeniably had more influence over his father than the other siblings, it would be difficult to predict whether a court would find undue influence based on these facts.

The burden of proof in claiming undue influence is on the person contesting the will and must be proved by the high standard of “clear and convincing evidence.” Because of this elevated evidentiary standard and the challenge in analyzing the factors listed above, proving undue influence can be quite difficult.