In the world of estate litigation, there is a tendency to view influence askance:  to see all influence as being motivated by self-interest and as inevitably carrying the seeds of coercion or “undue influence.”

Of course, this can’t be the case.  A society that cares for the vulnerable and the elderly will require that strangers or distant relatives step in on occasion to help someone in need, particularly where there is no immediate family member to assist.  A balance must be struck in the law as it relates to undue influence between protecting the elderly and vulnerable while, at the same time, respecting the dignity of an individual to exercise his or her own decision-making even in the face of influence or persuasion.

The law of undue influence has evolved differently as it relates to inter vivos gifts, on the one hand, and Wills, on the other.  A full discussion of the reasons for this goes way beyond the scope of a blog but one observation that can be made is the acceptance that the law has shown for an individual to assert testamentary freedom, even if that means benefitting someone who exercises power over them.

Commentators such as John Poyser have observed the various rationales behind the fact that the presumption of undue influence is inapplicable in the case of Wills.  While the law in this area has evolved, one of the policies underlying the law recognizes what we observed above:  society requires the young to help the old.  While there must be boundaries put on any conduct that would amount to an abuse of this social reality, there must at the same time be a recognition that well-meaning people should not be dissuaded from providing assistance if to do so would automatically trigger a legal presumption that their actions amounted to coercion.

Thanks for reading,

David Morgan Smith