With second marriages on the rise and continued expansion of mandatory reporting of elder abuse, we are seeing more cases involving elders where undue influence is being alleged. Most undue influence cases are seen in probate courts in guardianships, conservatorships, and with disputed wills and trusts. Undue influence situations are also seen in contract law with documents such as deeds, powers of attorney, and contracts. The questions the court generally ask is: did the person have capacity when they signed a legal document or was there undue influence?
The Colorado Supreme Court has held that contractual capacity and testamentary capacity are the same. Bredeen v. Stone, 992 P2d 1167 (Colo. 2000). Testamentary capacity consists of mentality in memory sufficient to understand intelligently the nature and purpose of the transaction, to comprehend generally the nature and extent of property to be disposed of, to remember who are the natural objects of the testator’s bounty, and to understand the nature and effect of the desired disposition. Cunningham v. Stender, 255 P.2d 977 (Colo. App. 1962). In layman’s terms, that means, one needs to know who you are, what you own (generally), who would generally be considered the persons that would take under your will, and if you are not giving to those persons, the reasons that you are making a disposition or gift that you are.
The individuals most vulnerable to charges of undue influence are often those closest to the donor. This is especially true if those persons are also friends and family of long standing. And, what happens if a testator makes a gift to a long-standing friend or family member to the exclusion of another friend or family member? Often that creates a situation where claims of “undue influence” are made by the excluded party toward the recipient party. Claims of “undue influence,” either for an intervivos gift (made during life) or a testamentary gift (made via a will or trust) can be emotionally wrought (on both sides), and can create significant familial discord, which is unlikely the desire of either the testator or the gift/ devise recipient.
To prove undue influence, the person seeking to set aside the transfer must show that the influence was enough to “overpower the will of the grantor to the extent that he [was] prevented from voluntary action and [was] deprived of free agency.” Krueger v. Ary, 220 P.3d 923, 924-926 (Colo. App. 2007) aff’d, 205 P.3d 1150 (Colo. 2009), note 2, quoting Anderson v. Lindgren, 157 P.2d 687, 689 (Colo. 1945). Said another way, undue influence is a force overcoming the will of the testator. However, influence over a person gained through persuasion or kindness, even if the influence results in a disposition that is “unequal” or “unjust” in favor of the recipient, is not undue — if the decision was made by the testator voluntarily. If a testator is making his or her own decision, gifts during life or at death are the sole prerogative of the testator, notwithstanding expectations or hurt feelings of children, family, or friends.
If a testator is considering making an intervivos gift or a testamentary gift to a caregiver, friend, or even a family member — to the “detriment” of another family member or friend — consider talking to an attorney to get the best advice, and possibly avoid a legal contest to the validity of a gift. If the attorney believes that such a gift or devise may cause a will contest (or an assertion of undue influence), there may be ways to ensure that the question of testamentary capacity and/or undue influence are addressed at the time of the gift or drafting of documents. On the other hand, if you have a good faith belief or suspicion an at-risk family member or friend is being exploited or abused financially, including undue influence to make a gift to another, you should contact Adult Protective Services or law enforcement in the county where the individual resides.
Written by Jessica H. Catlin