50 State Undue Influence Project: Nebraska Undue Influence Expert Definitions
In an effort to provide a better understanding for what undue influence expert psychologists look for when forming opinions about whether undue influence occurred in the execution of a will, trust, beneficiary designation, or other contractual document, I am highlighting the statutes, case law, and jury instructions specific to all 50 states. Each will be in its own blog post. Twenty-seventh up, Nebraska.
Mock V. Neumeister, 2017, N.W.2d 296 Neb. 376:
Undue Influence: The elements which must be proved in order to vitiate a transfer of property on the ground of undue influence are that
The transferor was subject to undue influence;
There was an opportunity to exercise such influence;
There was a disposition to exercise such influence; and
The transfer was clearly made as the result of such influence (citing Freemont National Bank v. Beerbohm, 1986).
Undue Influence: Deeds: Words and Phrases: The undue influence which will void a deed is an unlawful or fraudulent influence which controls the will of the grantor (citing Rule v. Roth, 1978).
Conveyances: Undue Influence: A court, in examining the matter of whether a deed was procured by undue influence, is not concerned with the rightness of the conveyance but only whether it was the voluntary act of the grantor (citing Caruso v. Parkos, 2002).
Deeds: Undue Influence: Proof: The burden is on the party alleging the execution of a deed was the result of undue influence to prove such undue influence by clear and convincing evidence (citing Caruso v. Parkos, 2002).
Will Contest: Undue Influence: Proof: The burden is on the party alleging undue influence in the procuring of the Will, and undue influence must be proved by a preponderance of the evidence (Hartley v. Metropolitan Utility Distric, 2016; In re: Estate of Price, 1986).
Undue Influence: Mere suspicion, surmise, or conjecture does not warrant a finding of undue influence; instead, there must be a solid foundation of established facts on which to rest the inference of its existence (citing Caruso v. Parkos; Craig v. Kile, 1983; McDonald v. McDonald, 1980; Zych v. Zych, 1969).
Undue Influence: Proof: Undue influence is usually difficult to prove by direct evidence, and it rests largely on inferences drawn from facts and circumstances surrounding the testator’s life, character, and mental condition (In re: Estate of Hedke, 2009).
The trier of fact should view the entire evidence and decide whether the evidence as a whole proves each element of undue influence (citing In re: Estate of Hedke, 2009).
Freemont National Bank & Trust Co. v. Beerbohm, 1986, 223 Neb. 657, 392 N.W.2d 767:
Undue influence sufficient to defeat a transfer of property is such manipulation as destroys the free agency of the transferor and substitutes another’s purpose for that of the transferor.
Anderson v. Claussen, 1978, 200 Neb. 74, 80, 262 N.W.2d 438, 441-442:
In an undue influence case the burden of proof, or the risk of nonpersuasion on that issue, is on the plaintiff and remains there throughout the trial…in an action based on undue influence, when a confidential relationship exists between the parties, and a prima facie case is established, the burden of proof remains on the plaintiff, but the burden of going forward with the evidence shifts to the defendants.
In re: Estate of Clinger, 2015, 292 Neb. At 253-254, 872 N.W.2d at 51:
The inference of undue influence may be rebutted by proof that the testator had competent independent advice and that the will was his or her own voluntary act.