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:
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:
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.
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:
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.
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:
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.
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.