In Undue Influence in Making Bequests: A Forensic Psychiatrist Examines the Evidence, undue influence expert witness Stephen M. Raffle, M.D., writes:
One of the inferences for the exertion of “undue” influence is if a close or isolative relationship existed between the testator and the proponent of the changed will or trust at the time changes are entered into. When the beneficiary/caregiver isolates the testator from his/her other natural heirs, there is an index of suspicion to the psychiatrist for undue influence.
Another circumstantial fact may be a financial relationship between the “favored” beneficiary and the testator. For example, the favored beneficiary has check-writing authority and is otherwise being empowered to take over the financial affairs of the testator. Yet other example may be the receipt of a joint tenancy interest in real property even though the property was paid for entirely by the testator, or being employed by the testator’s business (or promoted if already an employee) up to and including being made an officer of the company.
Participation in the procurement, preparation, or execution of the actual testamentary document is not an essential element of undue influence. The “favored” beneficiary need not be present at the time of the execution of a disputed testamentary document to participate in the creation or execution of the document. The participation may be proven inference. The forensic psychiatrist examines such participation when assessing undue influence. When the beneficiary personally communicates with the attorney who is drawing up the testamentary instruction, this is inferential evidence for the forensic psychiatrist to consider. Other circumstances the psychiatrist considers may include the allegedly “influencing” beneficiary meeting alone with the attorney who subsequently prepares a trust or will for the testator, and/or telling the preparer what the modifications will be. Other medical evidence is when the attorney who drafts the document is also retained by the beneficiary of the will or trust; there is a suggestion of a conflict. The psychiatrist would want to know the nature of the prior relationship with the attorney, and how the testator came to choose and rely on that attorney.
Undue profit as indicia of undue influence may be considered. In Estate of Gelonese, a testamentary disposition that does not treat a descendant’s children equally is “unnatural,” “demonstrating undue benefit to one child over the other.” The question whether the proponent unduly profited by testamentary document is resolved by the terms of the testamentary document itself.
As a psychiatric evaluator, I look at the relative complexity of the instrument which is drawn and assess the testator’s mental capacity to understand the document, as reflected by either direct or indirect evidence, e.g., deposition testimony, films/videos, medical records, and testimony from disinterested parties When a testator “trusts” a favored beneficiary to tell the testator what the will or trust means, then in my opinion there is substantial room for misrepresentation and distortion. The disproportionate trust in a beneficiary when there is an exclusion of other children of the beneficiary from the testamentary document raises the medical questions of independent action versus deception and self-dealing.
Further comments on this issue are addressed in my discussion of testamentary capacity (which may or may not be linked to undue influence).
Stephen M. Raffle, M.D., Board Certified Forensic Psychiatrist focusing on emotional distress, PTSD, chronic pain, undue influence, testamentary capacity and employment litigation (among others), with over 40 years’ experience offering expert opinion in over 5000 cases, 700+ depositions, and testifying in 150+ trials in Federal, State, Administrative and Military jurisdictions