Undue Influence in Wills, Trusts, Deeds, Nonprobate Transfers: Factors

Wills, trusts, deeds, and nonprobate transfers (e.g., beneficiary designations, transfer on death or payable on death arrangements) are sometimes challenged on the basis of undue influence. Undue influence is when one individual induces another by “active conduct” to provide a substantial benefit through the transfer of property. Undue influence cases are evaluated on a case-by-case basis because they are fact intensive claims. Indeed, the Missouri Supreme Court has observed that other cases involving undue influence generally are “not helpful because each case must be decided upon its own facts and it is seldom that we find cases involving strongly similar facts.” Wilhot v. Fite, 341 S.W.2d 806 (Mo. 1960). Undue influence is typically exerted in a subtle, furtive, indirect and elusive manner to the point that direct evidence is difficult to obtain; accordingly, influence is often shown indirectly by the reasonable and natural inferences drawn from established facts and circumstances. 
A circumstantial case of undue influence is not made by the establishment of any one factor. Instead, it is usually a combination of factors. Courts have set forth a number of factors which may be indicative of undue influence, including but not limited to: (1) an “unnatural” disposition of the property, (2) a change in predetermined testamentary intent, (3) a drastic change in plans/disposition of property, (4) unusual circumstances surrounding execution, (5) hostile feelings of the beneficiary toward the ousted recipients, (6) physical/mental condition of the testator/decedent, (7) terms of the document reflecting undue influence, and (8) derogatory remarks of the beneficiary about the ousted recipients. 
Contact with questions relating to undue influence and probate litigation generally. 

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