Utah Undue influence
To declare a will invalid because of undue influence, there must be an exhibition of more than influence or suggestion, there must be substantial proof of an overpowering of the testator's volition at the time the will was made, to the extent he is impelled to do that which he would not have done had he been free from such controlling influence, so that the will represents the desire of the person exercising the influence rather than that of the testator. This showing need not be based on proof of physical coercion or constraint.
Statute of Limitations
Actions based on lack of consideration and undue influence are equitable actions governed by the four-year statute of limitations.
In cases of undue influence and duress the limitation period begins with the termination of the influence.
A confidential relationship is presumed between parent and child, attorney and client, and trustee and cestui que trust. Blodgett v. Martsch, Utah, 590 P.2d 298 (1978). The same holds true between a spiritual advisor and a dying man. Corporation of the Members of the Church of Jesus Christ of Latter-day Saints v. Watson, 25 Utah 45, 69 P. 531 (1902). Where a confidential relationship exists, a presumption of unfairness arises which must be overcome by countervailing evidence, and the burden shifts to the defendant to prove absence of unfairness by a preponderance of the evidence. Robertson v. Campbell, Utah, 674 P.2d 1226 (1983) (finding of undue influence in execution of trust shifted burden to defendant to prove absence of undue influence in a subsequent alleged ratification of the trust); Johnson v. Johnson, 9 Utah 2d 40, 337 P.2d 420 (1959); In re Swan's Estate, 4 Utah 2d 277, 293 P.2d 682 (1956). In all other relationships the existence of a confidential relationship becomes a question of fact.
Undue influence is presumed where a confidential relationship exists between the testator and the beneficiary of the will. In re Estate of Jones, 759 P.2d 345, 347 (Utah App.1988), rev'd on other grounds, 858 P.2d 983 (Utah 1993). Such “[a] confidential relationship arises when one party, after having gained the trust and confidence of another, exercises extraordinary influence over the other party.” Id. However, while a few relationships, such as that of attorney and client, are presumed to be confidential, “[i]n all other relationships the existence of a confidential relationship is a question of fact.” Id. Accordingly, “ ‘[w]hile kinship may be a factor in determining the existence of a legally significant confidential relationship, there must be a showing, in addition to the kinship, [of] a reposal of confidence by one party and the resulting superiority and influence on the other party.... Mere confidence in one person by another is not sufficient alone to constitute such a relationship.’ ” Id. at 347-48 (quoting Bradbury v. Rasmussen, 16 Utah 2d 378, 401 P.2d 710, 713 (1965)). Accord Baker, 684 P.2d at 637.
When a confidential relationship exists between parties, and a transaction occurs that benefits the one in whom confidence is placed, a presumption arises that the transaction is unfair. E.g., Bradbury v. Rasmussen, 16 Utah 2d 378, 383, 401 P.2d 710, 713 (1965). This shifts to the benefiting party the burden to persuade the court that there was no fraud or undue influence exercised toward the other. In re Swan's Estate, 4 Utah 2d 277, 293, 293 P.2d 682, 693 (1956).
The mere relationship of parent and child does not constitute evidence of such confidential relationship as to create a presumption of fraud or undue influence. While kinship may be a factor in determining the existence of a legally significant confidential relationship, there must be a showing, in addition to the kinship, a reposal of confidence by one party and the resulting superiority and influence on the other party. The relationship must be such as would lead an ordinarily prudent person in the management of his business affairs to repose that degree of confidence in the other party which largely results in the substitution of the will of the latter for that of the former in the material matters involved in the transaction. The doctrine of confidential relationship rests upon the principle of inequality between the parties, and implies a position of superiority occupied by one of the parties over the other. Mere confidence in one person by another is not sufficient alone to constitute such a relationship. The confidence must be reposed by one under such circumstances as to create a corresponding duty, either legal or moral, upon the part of the other to observe the confidence, and it must result in a situation where as a matter of fact there is superior influence on one side and dependence on the other.
Lack of Direct Evidence in Will Contests
The Utah Supreme Court stated in the case In re Hansen’s Estate: In a case of this sort it is not usually possible to procure direct evidence of the statements and conduct which one accused of undue influence has used on the decedent. One of the two is dead; the other cannot be expected to give evidence against himself. The usual way is to give the surrounding circumstances from which deductions may be made.
In re Hansen’s Estate, 87 Utah 580, 52 P.2d 1103 at 1110 (Utah 1935), emphasis added. Utah Supreme Court also stated, “ . . .undue influence is seldom subject to direct proof, but, as a general rule, must be established by inferences and circumstances. . .” In re Hanson's will, 50 Utah 207, 167 P. 256, 261 (Utah 1917), emphasis added.
A trust instrument that is produced by undue influence and is therefore initially invalid may subsequently be validated by the settlor's ratification if the acts of ratification are free from undue influence. Detroit Bank and Trust Co. v. Grout, 95 Mich. App. 253, 289 N.W.2d 898 (1980); Kazarus v. Manufacturers Trust Co., 156 N.Y.S.2d 275 (1956), aff'd on other grounds, 4 A.D.2d 227, 164 N.Y.S.2d 211, aff'd 4 N.Y.2d 930, 175 N.Y.S.2d 172, 151 N.E.2d 356 (1957); Kemper v. Raffel, 169 Md. 616, 182 A. 461 (1936); Vanderlinde v. Bankers' Trust Co., 270 Mich. 599, 259 N.W. 337 (1935); 89 C.J.S. Trusts § 82 (1955).
Acts which have been held to constitute ratification include a subsequent execution of a will which incorporates the trust, Vanderlinde v. Bankers' Trust Co., supra; a partial distribution of trust assets, Detroit Bank and Trust Co. v. Grout, supra; the execution of an amendment to the trust instrument, id.; the transfer of property into the trust, Kemper v. Raffel, supra; the transfer of a remainder interest to the trust, Kazarus v. Manufacturer's Trust Co., supra; and an invasion of the trust principal, id.
In ratification cases where undue influence tainted the execution of a trust, will, or contract, it is presumed that the undue influence also tainted the ratification if the causative elements giving rise to the initial undue influence are such that the undue influence was likely to have continued. "If the undue influence has once been exerted it will be presumed to follow and taint every transaction between the parties thereafter... ." White v. Palmer, Okl., 498 P.2d 1401, 1406 (1971).
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Conversely, when the person initially responsible for exercising undue influence is no longer in a position to do so, it is presumed that the undue influence has ceased. Detroit Bank and Trust Co. v. Grout, 95 Mich. App. 253, 289 N.W.2d 898 (1980); Kazarus v. Manufacturer's Trust Co., 156 N.Y.S.2d 275 (1956), aff'd on other grounds, 4 A.D. 227, 164 N.Y.S.2d 211, aff'd 4 N.Y.2d 930, 175 N.Y.S.2d 172, 151 N.E.2d 356 (1957).
Standard of Proof
It is unclear what the standard of proof is for Undue Influence cases. When relating to deeds, case law suggests that it must be established by clear and convincing evidence. Bradbury v. Rasmussen, 16 Utah 2d 378, 385, 401 P.2d 710, 715 (1965). However, in relation to wills, it may be different.
The following footnote from a Utah Supreme Court case provides insight on this confusion:
Our cases have applied numerous and sometimes inconsistent standards. Many of the cases refer to "substantial proof" or "substantial evidence." In one case, we required "substantial facts ... and the circumstances relied on should clearly point out the person who it is alleged exercised the undue influence and his acts constituting the alleged undue influence." In re Lavelle's Estate, 122 Utah 253, 248 P.2d 372, 378 (1952) (citations omitted). Such language suggests something greater than a preponderance of the evidence standard.
However, one year later, we noted that once valid execution was proven, "it then became incumbent on the contestants to prove by a preponderance of the evidence that the testatrix did not have a sound and disposing mind at the time she executed the Will or that she was acting under fraud, menace or undue influence." In re Buttars' Estate, 123 Utah 596, 261 P.2d 171, 172 (1953) (citations omitted). Georgia suggests that the preponderance of the evidence language in In re Buttars' Estate applies only to testamentary capacity, but that reading is inconsistent with the structure of the sentence. The preponderance language, as it is placed, modifies both capacity and undue influence, as the use of the disjunctive makes apparent. This would suggest that the preponderance of the evidence test applies.
Georgia compares cases alleging undue influence and fraud in challenges to deeds and real estate conveyances that apply a clear and convincing test and argues that the same test should apply to undue influence in a will. Northcrest, Inc. v. Walker Bank & Trust Co., 122 Utah 268, 248 P.2d 692 (1952) (applying clear and convincing test to attack on deed); Pace v. Parrish, 122 Utah 141, 247 P.2d 273 (1952) (applying clear and convincing test to alleged fraudulent conveyance). We acknowledge that this question requires clarification. However, because the issue was not properly preserved for appeal, we decline to decide it in this case.
Our cases are unclear as to the correct standard of proof for undue influence, typically referring only to "substantial proof." In re Lavelle's Estate, 122 Utah 253, 248 P.2d 372, 375-76 (1952); In re George's Estate, 100 Utah 230, 112 P.2d 498, 499-500 (1941); In re Hansen's Will, 50 Utah 207, 167 P. 256, 261 (1917). However, the evidence of undue influence in this case would be insufficient under either standard of proof. As we have articulated in the past, undue influence requires more than "mere suspicion" and must be based on "substantial facts." In re Hansen's Will, 50 Utah 207, 167 P. at 261. Such is not the case here.
Burdens of proof
- In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue, and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases, and if they are also petitioners, prima facie proof of death and venue. Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation. Except in cases where a presumption is operable, parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof. Where one or more presumptions are operable, the ultimate burden of persuasion shall be determined in accordance with the Utah Rules of Evidence.
- If a will is opposed by the petition for probate of a later will revoking the former, it shall be determined first whether the later will is entitled to probate, and if a will is opposed by a petition for a declaration of intestacy, it shall be determined first whether the will is entitled to probate.