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Kevin O'Flaherty

The purpose of this article is to explain undue influence as a cause of action in Illinois will contests and probate litigation.  For some foundational information about will contests and the Illinois probate litigation process, check out our article: Illinois Will Contests Explained | Illinois probate litigation.  “Undue influence” is one of many bases for arguing that a will is invalid, other causes of action include lack of testamentary capacity, fraud, revocation, and noncompliance with formalities of execution.

“Undue influence” occurs when a person executing a will or trust (“a testator”) has his or her own will overpowered by another’s improper or wrongful constraint or persuasion, which causes the person executing the will or trust to act in a way he or she would not have acted in the absence of the undue influence.  

‍The undue influence must have occurred at the time that the will was drafted, and must have tended to deprive the testator of the ability to freely make decisions.  The mental capacity of the testator is an important consideration in undue influence cases.  In cases where the testator was in a weak or disabled mental state, less evidence is required to prove undue influence than when the testator has full command of his or her faculties.

Undue influence can be proven in one of two ways:

  1. Proving specific actions that rise to the level of undue influence; or
  2. Establishing the existence of a fiduciary duty, which raises the presumption of undue influence, requiring the other party to prove that undue influence did not occur.

Presumption of Undue Influence Based on Fiduciary Duty

In order to shift the burden of proof by raising a presumption of undue influence based on the existence of a fiduciary duty, the party claiming the existence of undue influence must prove the following elements:

  1. That a fiduciary relationship existed between the testator and a substantial beneficiary of the will or trust;
  2. That the fiduciary was in a position to dominate and control the testator;
  3. That the testator placed his or her trust or confidence in the fiduciary; and
  4. That the fiduciary was instrumental in or participated in the procurement or preparation of the will or trust.

‍Once these four elements have been proven by the party seeking to prove undue influence, a presumption that the will or trust was a result of undue influence arises, and the burden of proof shifts to the other party to show that no undue influence existed.  

When Does a Fiduciary Duty Exist in Illinois For the Purpose of Undue Influence?

Certain types of relationships are automatically considered fiduciary relationships.  These are known as per se fiduciary relationships, or fiduciary relationships as a matter of law.  The following types of relationships are fiduciary relationships as a matter of law:

  • Attorney and client; 
  • Trustee and beneficiary of a trust; 
  • Financial power of attorney; and
  • Guardian and ward.

If a fiduciary relationship does not exist as a matter of law, the existence of the fiduciary relationship must be established based on the facts of the specific case by clear and convincing evidence.  This requires greater evidence than the default “preponderance of the evidence” standard of proof, which only requires a party to show that his or her factual argument is more likely than not to be true.

Factors Illinois Courts Weigh in Determining the Existence of a Fiduciary Relationship

In the absence of a per se fiduciary relationship, courts will weigh the following factors to determine whether a fiduciary relationship exists based on the specific facts of the case:

  • Degree of kinship;
  • Disparity in age;
  • Disparity in health;
  • Disparity in mental condition;
  • Disparity in education; and
  • Whether and to what degree the testator trusted the alleged fiduciary with his or her financial affairs.

For certain close familial relationships such as relationships between parent and child or between spouses, courts have noted that the fiduciary label should be applied with caution. Even though many of the above factors may apply to those relationships, courts are less likely to raise the presumption of undue influence with respect to parent-child and spousal relationships because of the unique nature of the type of relationship.  

Rebutting the Presumption of Undue Influence of a Fiduciary

Once the presumption of undue influence based on a fiduciary relationship has been established, the level of evidence required to rebut the presumption depends on whether the fiduciary relationship arose as a matter of law or whether it arose based on the specific facts of the case.  

If the fiduciary relationship arose as a matter of law, the presumption of undue influence must be rebutted by clear and convincing evidence.  

On the other hand, if the fiduciary relationship arose based on the specific facts of the case, the presumption may be rebutted by a preponderance of the evidence, a lower standard than clear and convincing evidence.  The greater the evidence was that gave rise the presumption, the greater the evidence must be to rebut the presumption.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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