50 State Undue Influence Project: New Mexico 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. Thirty-first up, New Mexico.
Chapman v. Varela, 2009-NMSC-041, 146 N.M. 680, 213 P.3d 1109 (2009):
Undue influence means influence, improperly exerted, which acts to the injury of the person swayed by it or to the injury of those persons whom he or she would have benefitted (quoting Brown v. Cobb, 1949).
Suspicious circumstances include:
Old age and weakened physical or mental condition of testator;
Lack of consideration for the bequest;
Unnatural or unjust disposition of the property;
Participation of beneficiary in procuring the gift;
Domination or control over the donor by a beneficiary; and
Secrecy, concealment, or failure to disclose the gift by a beneficiary.
This is not an exhaustive list, nor is it a list of circumstances that are always suspicious. Furthermore, the presence of these circumstances is not in itself dispositive.
A will contestant is never required to offer direct evidence of undue influence. The mechanism of a presumption allows the will contestant to get the issue of undue influence before the finder of fact by offering only proof of a confidential relationship and suspicious circumstances, even in the face of contradictory evidence.
The ultimate question before the trier of fact is whether the will contestant has proven that the testator made a gift he otherwise would not have made absent improper influence. For undue influence, the trier of fact must find:
1. That a confidential relationship existed and that the will proponent used that position to unfairly and improperly influence the decedent to his injury, or to the injury of those persons he would have benefitted in the absence of the influence; or
2. That the will proponent unfairly and improperly influenced the decedent as to prevent him from exercising a free and understanding judgment when he executed his will.
While a presumption of undue influence (confidential relationship and suspicious circumstances) will take the contestant to the fact finder, the fact fined must still determine whether the contestant has made his or her ultimate case for undue influence by clear and convincing evidence.
Where decedent's will left one dollar to each of the decedent's children, except one child, who was appointed as personal representative and to whom the will conveyed the remainder of the decedent's estate; the decedent depended on the beneficiary for transportation, gave the beneficiary a power of attorney and placed the beneficiary's name on the decedent's bank accounts; the decedent suffered from age-related and stroke-related loss of cognitive functioning and memory loss; approximately one year before the decedent's last will was written, the decedent signed a separate and nearly identical document to the last will that the beneficiary had written using a will template which the beneficiary obtained at a stationery store; because the prior will had not been signed in accordance with the requirements of the Uniform Probate Code, the decedent and the beneficiary instructed an attorney to prepare a will that contained the same language as the earlier will; the beneficiary spoke for the decedent; the beneficiary disparaged the other siblings; the decedent was submissive around the beneficiary; the beneficiary manipulated the decedent's bank accounts; and the beneficiary did not tell the siblings about the will or about deeds which the decedent had executed conveying the decedent's real property to the beneficiary, the evidence was sufficient to prove the existence of a confidential relationship and suspicious circumstances and raise the presumption of undue influence in the execution of the decedent's will.
In re Estate of Gonzales, 1988-NMCA-098, 108 N.M. 583, 775 P.2d 1300 (1989):
No case has based a presumption of undue influence on the fact that the testator was elderly without evidence that the testator’s age had affected his or her mental ability.
Poor health and the inability to read, without a showing of its effect on a testator’s mental ability, are not sufficient to deny probate of the testator’s will.
The fact that the decedent spoke and understood English poorly also is insufficient to deny probate to her will, unless there is evidence that her inability to speak English affected her understanding of the proceedings.
Hummer v. Betenbough, 1965-NMSC-075, 75 N.M. 274, 404 P.2d 110:
Factors raising undue influence presumption:
The facts of: (1) the age, poor eyesight and lack of education of decedent; (2) decedent's poor mental history; (3) the fiduciary and confidential relationship existing between testatrix and her brothers; (4) the opportunity to exercise an undue influence; (5) the brothers' participation in the procurement of the will; and (6) the unusually large proportion of the estate received by the brothers as beneficiaries give rise to a rebuttable presumption that the brothers of decedent exerted undue influence on decedent.
A presumption of undue influence is not raised and the burden of proof is not shifted by the mere fact that a beneficiary occupies, with respect to the testator, a confidential or fiduciary relation.
Montoya v. Torres, 1991-NMCA-152, 113 N.M. 105, 823 P.2d 905:
There was substantial evidence to support imposition of presumption of undue influence over an elderly woman who gave property to her step-grandson where: (1) the grandson gave no consideration for the property; (2) the grandmother never mentioned to close friends or family an affection for the grandson or her intent to give him the property; (3) the grandmother placed trust and reliance in the grandson's parents and grandfather to assist her in executing the documents to transfer the property; (4) the grandmother had a short and limited relationship with her grandson; and (5) she had expressed an intention to leave the subject property to her son.
Gersbach v. Warren, 1998-NMSC-013, 125 N.M. 269, 960 P.2d 811:
While secrecy on the part of a beneficiary of a testamentary gift may constitute a "suspicious circumstance" giving rise to a finding of undue influence, secrecy on the part of the testator does not.
Lack of consideration for a testamentary gift is not ordinarily a "suspicious circumstance" giving rise to a finding of undue influence by the beneficiary upon the testator.
Galvan v. Miller, 1968-NMSC-139, 79 N.M. 540, 445 P.2d 961:
Where a transfer of property is made by a parent to his child, a husband to his wife, a brother to his sister, etc., it is ordinarily a natural result of the affection which normally is a concomitant of these relationships, and it would be unfair under such circumstances to impose a presumption of undue influence upon the transfer. But where, in addition to the usual circumstances, it is shown that the beneficiary of the transfer occupies a dominant position in the relationship which is not the usual circumstance in such relationships, it is proper to impose a presumption of undue influence upon the transfer.
NM Stat § 45-3-407-Formal testacy proceedings; burdens in contested cases
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. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof. If a will is opposed by the petition for probate of a later will revoking the former, it shall be determined first whether the will is entitled to probate.