Active Procurement: Undue Influence in Estate Litigation, Challenges

Undue influence is a common legal claim used in probate litigation to set aside, void or challenge a will, trust, deed or non-probate transfer. It is when the influencer substitutes his or her will for the person who is signing the document. Because this is a vague claim, Missouri cases have set forth three elements which create a presumption of undue influence for the judge/jury: (1) there is a confidential/fiduciary relationship between the influencer and the executing party, (2) there is a benefit to the influencer and (3) there is some additional evidence that the influencer actively procured the change or document. Estate of Brown v. Fulp, 718 S.W.2d 588 (Mo. Ct. App. 1986). 
The third component necessary to meet the presumption is sometimes difficult to grasp or prove. Active procurement may be inferred from the power of the influencer to influence the holder of the funds, the opportunity to do so and the disposition of the property was a changed course of action. Estate of Gross v. Gross, 840 S.W.2d 253, 258 (Mo. Ct. App. 1992). “[I]t would appear almost by definition that the existence of a fiduciary relationship establishes a position to exercise undue influence.” Id. Courts have adopted a liberal attitude regarding the quantum of evidence necessary to establish that the fiduciary caused or contributed to cause the execution of the instrument.” Id. To that end, the actual presence of the influencer at the transaction, or even the exertion of the influence at the exact moment of transaction need not be shown. Id.
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