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“Undue Influence” and Shifting Burdens of Proof in Massachusetts Probate Court

Joseph Coupal - Wednesday, January 23, 2013
By Michael C. Fee

Those dissatisfied with the testamentary provisions of a decedent’s will or trust can usually challenge the instrument by bringing a will contest proceeding in the Probate Court.  While the recent enactment of the Massachusetts Uniform Probate Code streamlines procedures to a certain extent, the substantive law of will contests remains unchanged.  There are several well-established rationales to challenge a will, including the decedent’s lack of capacity or lack of knowledge regarding the will’s contents, the absence of certain statutory formalities in the will itself, and even fraud.  The most common legal argument asserted in will contests, however, is that the decedent was subjected to undue influence.

“Undue influence” is generally described as a set of facts or circumstances that “destroy free agency.”  Undue influence sways the testator’s free will so that he or she acts contrary to his or her own wishes.  Bruno v. Bruno, 10 Mass. App. Court 918 (1980).  Naturally, the facts that give rise to claims of undue influence take all shapes and forms, and it is not my intention to explore the breadth of undue influence law in detail, but rather to focus on what a litigant needs to prove in order to successfully prosecute or defend a will contest action based on undue influence in Massachusetts.

The specific elements that must be proven in order to establish undue influence are “that an (1) unnatural disposition has been made (2) by a person susceptible to undue influence to the advantage of someone (3) with an opportunity to exercise undue influence and (4) who in fact has used that opportunity to procure the contested disposition through improper means.”  O’Rourke v. Hunter, 446 Mass. 814, 828 (2006), quoting from Tetrault v. Mahoney, et al., 425 Mass. 456, 464 (1997).  Mere suspicion, surmise or conjecture are not enough to warrant a finding of undue influence.  There must be a solid foundation of established facts upon which to rest an inference of its existence.”  O’Rourke, 446 Mass. at 828, quoting Neill v. Brackett, 234 Mass. 367, 370 (1920).

In general, a party challenging a will or other document on the ground that it was procured through fraud or undue influence bears the burden of proving the allegation by a preponderance of the evidence.  Cleary v. Cleary, 427 Mass. 286, 290 (1998), citing Taricone v. Cummings, 340 Mass. 758, 762 (1960), Mirick v. Phelps, 297 Mass. 250, 252 (1937) and Hogan v. Whittemore, 297 Mass. 573, 578 (1932).  In other words, the burden of proof lies with the plaintiff to establish that the defendant overcame the will of the grantor. Tetrault v. Mahoney, et al., 425 Mass. 456, 464 (1997), citing Corrigan v. O’Brien, 353 Mass. 241, 350 (1967).  

The burden shifts, however, when a fiduciary benefits from a transaction with his principal.  Cleary, 427 Mass at 290.  The rationale for burden shifting where a conveyance is made to one occupying a fiduciary relationship to the testator is grounded in the presumption that the transaction was executed by virtue of the relationship, “. . . and the burden . . . is placed upon the grantee to prove that the transaction was fair and just to the grantor and was not procured through fraud or undue influence.”  Smith v. Smith, 222 Mass. 102, 106 (1915).  

A critical threshold requirement in burden shifting is the fiduciary’s actual participation in the challenged transaction.  In Rempelakis v. Russell, 65 Mass. App. Ct. 557, 563 (2006), the Appeals Court squarely addressed the issue of whether Cleary’s burden shifting rule “. . . applies in any instance in which a fiduciary benefits from action by his principal, or . . . only where the fiduciary actually participates in a transaction with his principal from which the fiduciary benefits.”  In Rempelakis, the Court concluded

“. . . the burden of proving the absence of undue influence shifts to the fiduciary only where he has actually taken part in the questioned transaction.”  Id. (italics in original).  In cases where the burden of proof does shift to the fiduciary/grantee, it is generally met if the fiduciary shows that his principal made the bequest with full knowledge and intent, or with the advice of independent legal counsel.  Cleary, 427 Mass. at 291, citing Pollock v. Marshall, 391 Mass. 543, 557 (1984).

These subtle distinctions are often litigated.  In Cleary v. Cleary, the defendant [his aunt’s] insurance agent and attorney-in-fact, assisted her in designating himself as the beneficiary of certain annuity policies.  427 Mass. at 286.  Defendant claimed that his aunt asked him to obtain forms so that she could designate him the sole beneficiary of the policies.  He then brought the forms to the nursing home and explained to her that they would extend the maturity date on the policies while also naming him as the sole beneficiary.  Id. at 288.  The aunt signed the forms and the defendant filed them with the insurer.  In concluding that defendant had the burden of establishing that he had not exerted undue influence on his aunt in connection with the change of beneficiary, the Cleary court referred specifically to the “transaction” between the fiduciary and the principal, and concluded by stating: “We now hold that the fiduciary who benefits in a transaction with the person for whom he is a fiduciary bears the burden of establishing that the transaction did not violate his obligations.”  Id. at 295.

In Rempelakis v. Russell, 65 Mass. App. Ct. 557 (2006), the contestant to a will argued that the trial judge improperly allocated the burden of proof on the issue of undue influence to the contestant, notwithstanding the fact that a fiduciary relationship existed between the beneficiary and the testatrix at the time the challenged documents were executed.  Rempelakis, 65 Mass. App. Ct. at 558.  In affirming the trial court’s decision that the burden should not shift to the fiduciary, the Appeals Court held “that the burden of proving the absence of undue influence shifts to the fiduciary only where he has actually taken part in the questioned transaction.”  Id. at 563.  In Rempelakis, the Court found that the fiduciary had not taken part in the challenged transaction because “he did nothing to influence the decedent’s decision or to prepare the implementing documents.”  Id. at 564.

In construing the parameters of a burden shifting rule, the Rempelakis Court analyzed the Cleary ruling at length and observed as follows:

We are not prepared to assume that the Supreme Judicial Court casually included multiple references to "transactions" between fiduciary and principal, the rendering of assistance by the fiduciary in connection with the event from which he benefits, or the "bargaining" between fiduciary and principal in a matter of advantage to the fiduciary, without intending that the references have some meaning.  We grant that the Cleary case involved a transaction between fiduciary and principal.  But the ease with which the court could, if it wished, have stated a general principle that any fiduciary who benefits from any act of his principal in any circumstances has the burden of justifying the action suggests that its failure to do so was purposeful, and that it intended to limit the occasions on which a shift in the normal burden of the contestant to prove undue influence takes place.

Id. at 571 (footnote omitted) (emphasis in original).  

The Rempelakis went further in clarifying a principle that for many may seem like common sense:

Our reading of Cleary is influenced not only by the language of that opinion, but by considerations of policy as well. Fiduciaries are often relatives or friends of the principal, and thus frequently are natural objects of the principal's bounty. Indeed, it is the principal's feelings for the fiduciary that many times result both in the choice of that individual to perform fiduciary functions and the desire to reward the fiduciary in some manner. We think it a peculiar proposition that this natural state of affairs should be presumed in all instances to be the product of sinister behavior on the part of the fiduciary unless he proves otherwise. It is one thing to require such proof where the fiduciary himself brings about the benefit, even where the fiduciary is a relative or close friend of the principal.  See Cleary, 427 Mass. at 292-293.  It is something else entirely to require it (and accordingly to require the fiduciary to prove a negative) where the fiduciary benefits from the principal's generosity without any role in the decision.

Rempelakis at 567.

The lessons learned from these cases are that proof of undue influence requires facts, not speculation, and the burden will be on the person challenging the will to prove undue influence.  However, when the evidence shows that a beneficiary affirmatively engaged in acts leading to the change or modification of a will to his or her benefit, courts may shift the burden to that individual to prove that such actions were free from improper influence.  

If you have questions about probate laws, undue influence, will contests, or proceedings in the Massachusetts Probate Court, contact the Pierce & Mandell’s Probate and Fiduciary Litigation team.


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