New Jersey Legal Authorities Regarding Undue Influence
by John L. Pritchard, Esq.
Grounds to Invalidate a Document. Even if it is conceded that the deceased person actually signed a certain Last Will and Testament, there are two theories under which the document may be held to be invalid.
Firstly, if the decedent lacked sufficient mental ability to make a Last Will and Testament, the document will be held invalid. Once it is shown that the person lacked the required mental competence at any one point in time, it will be presumed by the Court that the person continued to lack sufficient mental competence, unless proof to the contrary is shown.
Secondly, even if it is not shown that the decedent lacked sufficient mental competence, the document will be held invalid if it was the product of undue influence.
Establishment of Undue Influence. In turn, there are two means by which undue influence may be established. The first method is by showing direct evidence of undue influence by the testimony of witnesses.
The second method of invalidating a document for reasons of undue influence is for the challenger to establish the existence of both a "confidential relationship" and "suspicious circumstances" relating to the execution of the purported Will. Once these two elements are shown, the burden of proof will be shifted, and the party who argues for the validity of the document will bear the burden of proof to establish by clear and convincing evidence that there was no undue influence. Haynes v. First National Bank, 87 N.J. 163 (1981).
The "suspicious circumstances" required may be merely "slight". Matter of Will of Liebl, 260 N.J. Super. 519 (App. Div. 1992).
Shifting of Burden of Proof. The Courts of New Jersey have long used the doctrine of confidential relationship, and the resulting shifting of the burden of proof, to protect infirm or disabled persons from undue influence.
The very nature of an undue influence case is that the deceased person is no longer available to testify. Often the person who had control over the decedent and the decedent's affairs is uniquely in possession of the facts.
An analogous situation is found in the well-known case of Byrne v. Boadle, 2 H&C 722, 159 Eng.Rep. 229 (1863), in which a passing pedestrian was injured by a barrel rolling out of a second floor window. The owner of the business located in the building claimed that the plaintiff had the burden of proof to show that he was negligent. However, the Court shifted the burden of proof to the owner of business to show that there was no negligence as the cause of the accident, as the business owner was uniquely in possession of the facts.
The doctrine of shifting the burden of proof in will contests, or of shifting the burden of going forward with the evidence, is not a recent development in the law of New Jersey, but instead goes back to at least the 1880's.
The origins of the confidential relationship doctrine in New Jersey can be found in early cases such as Dale v. Dale, 38 N.J. Eq. 274 (E.& A. 1884), in which our Court of Errors and Appeals barred the probate of a will because the testator's one son did not overcome a presumption of undue influence:
"The evidence shows that, for a long time proceeding her death, Mrs. Dale had been suffering from a disease which accelerated, if it did not directly cause her death.
"The disorder not only produced physical debility, which naturally caused mental debility, but directly affected the brain, by causing the formation of deposits upon the dure mater. Her complaints of headache and forgetfulness, her prolonged conditions of coma, together with the expert testimony relative to the effect of her disorder upon her intellectual and emotional faculties, show that she was susceptible to influence which would not have affected a person of robust physical and mental constitution." 38 N.J. Eq. at 275-276.
The condition of Mrs. Dale, and the fact that her son, Nelson, lived with her and handled her affairs, caused him to bear the burden to show there was no undue influence:
"So, for three months preceding the execution of the instrument under which Nelson took the almost entire property of his mother, to the exclusion of a brother, he was in a position in which, by continuous personal presence, or by correspondence following the then personal intercourse, he had the opportunity to exercise, over the unhealthy mind of his mother, an influence in directing the disposition of her property in his favor. The position he thus occupied, by which he had it in his power to exercise a dominant influence over his mother's mind, followed, as it was, by this will, throws the burden upon him, as the beneficiary under its terms, to show that its execution was free from improper influence exerted by him." 38 N.J.Eq. at 276.
Our Court of Errors and Appeals also imposed the presumption of undue influence where the donor was dependent upon the donee in Haydock v. Haydock's Executors, 34 N.J.Eq. 570, 574-575 (E.&A. 1881):
"I take the rule to be settled that where a person enfeebled in mind by disease or old age, is so placed as to be likely to be subjected to the influence of another, and makes a voluntary disposition of property in favor of that person, the courts require proof of the fact that the donor understood the nature of the act, and that it was not done through the influence of the donee . . ."
"The presumption against the validity of the gift is not limited to those instances where the relation of parent and child, guardian and ward or husband and wife, exists but in every instance where the relation between donor and donee is one in which the latter has acquired a dominant position . . ."
"Where parties hold positions in which one is more or less dependent upon the other, courts of equity hold that the weaker party must be protected, and they set aside his gifts if he had not proper advice independently of the other." Haydock, 34 N.J. Eq. at 575.
Confidential Relationship. Most commonly, a "confidential relationship" exists when the donor is dependent upon the donee by reason of physical weakness or mental infirmity.
In In re Estate of Penna, 322 N.J. Super. 417, 420, 424 (App. Div. 1999), the decedent was dependent by reason of an inability to speak English. Donor was not fluent in English and for this reason was dependent upon her daughter to conduct her banking and legal business, read her mail and pay her bills. The Court shifted the burden of proof.
An attorney is deemed to have a confidential relationship with a client, shifting the burden of proof, even when the attorney did not draft the will. In re Estate of Lehner, 70 N.J. 434 (1976).
It was stated in Stroming v. Stroming, 12 N.J.Super. 217, 224 (App.Div. 1951) (William J. Brennan, Jr., J.A.D.):
"A confidential relation is not confined to any specific association of the parties; Its essentials are a reposed confidence and the dominant and controlling position of the beneficiary of the transaction . . . It exists when the circumstances make it certain that the parties do not deal on equal terms, but on the one side there is an overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed."
"A confidential relationship arises where trust is reposed by reason of the testator's weakness or dependence or where the parties occupied relations in which reliance is naturally inspired or in fact exists, as the relation between client and attorney." In re Hopper, 9 N.J. 280, 282 (1952).
In the case of Matter of Will of Liebl, 260 N.J. Super. 519 (App. Div. 1992), it was stated:
"There are two elements necessary to give rise to presumption of undue influence. First, there must be a 'confidential relationship' between the testator and a beneficiary 'where trust is reposed by reason of the testator's weakness or dependence or where the parties occupied relations in which reliance is naturally inspired or in fact exist . . . Second, there must be 'the presence of suspicious circumstances which, in combination with such a confidential relationship, will shift the burden of proof to the proponent . . . Such circumstances need be no more than slight.
See also Haynes v. First National State Bank, 87 N.J. 163 (1981).
The involvement of an attorney does not prevent the imposition of the shifting of the burden of proof, but can only be used to attempt to overcome the presumption.
In this case, an attorney drafted the will, but he was located and selected through the efforts of Mr. Howard Bowman. Moreover, Mr. Alvin Leonard has substantial credibility problems of his own, and his appearance is likely to damage Ms. Berry's case rather than support it.
Even without a challenge to the credibility of the attorney, the testimony of an attorney who is not intimate with the testator's state of mind and affairs may not have great weight. In re Barnett, 2 N.J.Misc. 135 (Orp.Ct. 1924).
As Judge Clapp stated in his treatise, "Wills and Administration", New Jersey Practice, Section 134, Note 24:
"Proof of undue influence may have been exerted so covertly as not to have exposed itself to the testator's attorney who drew the will even when he puts to the testator the questions he should put to him to determine that the will is his voluntary act. The proof may therefore cast no reflection on the attorney."
Because the attorney can not know what occurs before or after his meeting with the testator, the fact that the testator has been put upon to destroy his free agency does not implicate the drafter. In re Doyle's Estate, 95 N.J.Eq. 682 (E.&A. 1924).
"Suspicious Circumstances". As shown above, "suspicious circumstances" is a necessary element only for a testamentary gift, and the suspicious circumstances need be only "slight".
As described by Judge Clapp, "Wills and Administration", New Jersey Practice, Section 62, Notes 8 - 12, each of the following constitutes "suspicious circumstances":
1. The beneficiary accused of undue influence selected the attorney, or had a role in the planning.
2. The beneficiary causes testator to be isolated from others.
3. The beneficiary conceals the making of a will.
4. The testator is mentally weak.
5. The will is "unnatural".
