Undue influence is the most common ground advanced to
contest a will in Oklahoma.
Undue influence is defined in Oklahoma law as follows:
Undue influence consists:
- In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him.
- In taking an unfair advantage of another's weakness of mind; or,
- In taking a grossly oppressive and unfair advantage of another's necessities or distress.
See
15 OK Stat § 15-61
The Presumption Of Undue Influence Under Oklahoma Law
A presumption of undue influence can arise under Oklahoma law that will shift the burden of proof from the person challenging the will to the person who has offered the will for probate.
Upon a finding by the trial court (1) that a confidential relationship existed between the will maker and another, stronger party and (2) that the stronger party actively assisted in the preparation of procurement of the will, a rebuttable presumption of undue influence at once arises that shifts to the will proponent the burden of producing evidence.
Estate of Holcomb, 2002 OK 90 ¶¶18-19, 63 P.3d 9.
What Is a “Confidential Relationship”?
A “confidential relationship” under Oklahoma undue influence law exists whenever trust and confidence are placed by one person in the integrity and fidelity of another.
Fipps v. Stidham, 74 Okl. 473 (1935).
Said another way, a confidential relationship is one which would induce a reasonably prudent person to repose confidence and trust in another.
What Factors Are Considered In Applying The Oklahoma Test Creating a Presumption of Undue Influence?
In applying the two prong undue influence presumption test 1) that a confidential relationship existed between the will maker and another, stronger party and (2) that the stronger party actively assisted in the preparation of procurement of the will, the Oklahoma probate court will look for the existence of several factors.
These factors include:
- whether the person charged with undue influence was not a natural object to the maker’s bounty;
- whether the stronger person was a trusted or confidential advisor or agent of the will’s maker;
- whether the stronger person was active and/or present in the procurement or preparation of the will;
- whether the will’s maker was of advanced age or impaired faculties; and
- whether independent and disinterested advice regarding the testamentary disposition was given to the maker. See Matter of Estate of Maheras.
Not all of the factors need to be present to raise the presumption of undue influence undue Oklahoma law.
Who Are the Natural Objects Of the Maker’s Bounty?
One of the first factors considered in determining whether the presumption of undue influence has been raised under Oklahoma’s two-part test is whether the person charged with undue influence is a natural object of the testator’s bounty. The natural objects of the testator’s bounty include his close family and
next of kin.
A testator is perfectly free to give his estate to friends and companions instead of the natural objects of his bounty. However, if the bequest in the will is highly irregular, such as disinheriting a loving child in favor of a neighbor, this factor can be important.
Stronger Person A Trusted Advisor/Active In Procurement of the Will
A person who has a confidential relationship with the testator is someone that the testator trusts and relies on. When this person is the stronger person in the relationship, and was active and/or present in the procurement or preparation of the will, the presumption of undue influence is well on its way to being raised.
Participation in the execution of the will or other testamentary instruments is considered participation in its creation. The presumption of undue influence can arise when the alleged undue influencer is present with the testator when the will is created and executed, or otherwise involved in the process. Most Oklahoma probate attorneys will make sure to meet with the testator alone during the meetings regarding the contents and the execution of the will in order to avoid creating some of the more obvious factors of undue influence.
Whether The Will’s Maker Was Of Advanced Age Or Impaired Faculties
A finding that the testator had weakened or diminished capacity is also a factor supporting that the testator was the victim of undue influence. A testator does not have to completely lack testamentary capacity to satisfy this factor. Instead, evidence that the testator had diminished capacity can be enough to raise this factor of undue influence.
It is not enough to say that the testator was of advanced age. There are plenty of testators of advanced age who are not of diminished capacity with impaired faculties.
Whether Independent And Disinterested Advice Regarding The Testamentary Disposition Was Given To The Maker
"Independent advice" means that the donor had the preliminary benefit of conferring fully and privately upon the subject of his intended gift with a person who was not only competent to inform him correctly as to its effect, but who was, furthermore, so dissociated from the interest of the donee as to be in a position to advise the donor impartially and confidentially as to the consequences of his proposed benefaction.
In the Matter of the Estate of Maggie Carano, 1994 OK 15, 868 P.2d 699,707, citing Anderson v. Davis, 256 P.2d 1099.
An
Oklahoma probate attorney advising the testator about the contents and effect of the will constitutes independent advice. However, when an attorney gives no substantial advice and functions as a mere scrivener, the presumption of undue influence is not overcome.
Undue influence is rarely done out in the open. It is a series of events and behaviors that happen “in the dark” away from the eyes of relatives and friends. Therefore, most undue influence cases in Oklahoma probate court are based on circumstantial evidence pieced together using the factors set forth above.
