In The New Undue Influence, Professors Horton and Weisbord contend that a newfangled sort of undue influence has recently emerged. As a means to challenge testamentary gifts, undue influence has endured its share of critics who claim it often takes the form of prejudiced views of “unnatural” objects of the donor’s bounty—such as same-sex spouses or age-differentiated partners. The popularity of undue influence once seemed to be fading. But the doctrine has now developed new teeth, resulting in a more effective tool for unwinding bequests produced by improper pressures on vulnerable, often elderly, testators.
This reinvigoration of undue influence can be discerned, Horton and Weisbord explain, in three areas. First, undue influence claims have been economically incentivized in some states by means of legislatively authorized fee-shifting as well as double damages (“a punitive makeover”) (P. 33) along with a relaxation of the standing rules governing who can bring a claim. Second, an evidentiary makeover has generated presumptions for claimants when the alleged culprit stood in a confidential relationship with the testator. Third, coupling undue influence with a new cause of action—elder abuse—can enhance the leverage of claimants with more generous statutes of limitation. Tracing these three related developments alone would constitute an important piece of scholarship. But the second half of The New Undue Influence also introduces an empirical analysis of these trends.
It’s in the empirical analyses that the article gets particularly interesting. California was selected as a geographical point of inquiry. California serves as an especially appropriate state for the authors’ assessments since it “is the leader of the undue influence pack” having “adopted the full rainbow of new undue influence laws….” (P. 35.)
The authors sifted nearly 7,000 probate and trust matters from the Alameda and San Francisco Counties to extract and assess some fifty variables. Using this data set, the authors identified 175 cases of undue influence. Of those, only nine (5%) proceeded to a verdict. Of those nine, the undue influence claimant prevailed in only a single case, but the data from settlements is more revealing.
Because California requires judicial approval of most estate settlements, the data set yielded key information concerning undue influence claim settlements. Horton and Weisbord were able to extract a success rate by dividing the settlement sum by the dollar figure the claimant would have recovered had she prevailed at trial. They were further able to compare the success rate for claimants utilizing the new undue influence remedies against those which featured conventional undue influence claims. For claimants relying on the latter, the success rate was 31.5%. But for claimants invoking the new undue influence frameworks, the success rate was 51.9%. Thus, cases with new undue influence allegations are correlated with significantly higher mean success rates. The new undue influence frameworks are working.
The article goes on to statistically disprove the concern of some legal scholars that undue influence protects family bequests at the expense of less traditional donees such as non-relatives and unmarried partners. This “family protection theory” posits that factfinders unfairly penalize “unnatural bequests” to non-family members in undue influence contexts. Statistically speaking, however, that’s simply not the case, the authors explain: claimants “who were members of the testator or settlor’s family did not fare better than those who were not.” (P. 42.)
Indeed, in some cases, alleged wrongdoers qualifying as “family” may have fared worse than unrelated individuals. The authors uncovered four cases in which a spouse of a testator was accused of undue influence and furthermore, the contestants claimed, the union was the product of a sham marriage. “Two of these ‘weddings’ occurred in secret, one took place less than a week before the owner died, and another happened two days before Adult Protective Services found that the settlor lacked mental capacity.” (Pp. 42-43.) Deathbed marriage ceremonies, it seems, can serve to arouse suspicions rather than allay them.
Additional nuggets of interest are peppered throughout this engaging, impressively researched (and copiously footnoted) article. Probate files are particularly well-suited to empirical study since there are so many of them. The future of elder law and estates scholarship will undoubtedly see more and more statistical inquiries. Horton and Weisbord show us how it’s done.
