50 State Undue Influence Project: North Carolina 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-third up, North Carolina.
In re: Will of Jones, 362 N.C. 569, 574 (2008):
Undue influence is “something operating upon the mind of the person whose act is called into judgment, of sufficient controlling effect to destroy free agency and to render the instrument, brought into question, not properly an expression of the wishes of the maker, but rather the expression of the will of another. It is the substitution of the mind of the person exercising the influence for the mind of the testator, causing him to make a will which he otherwise would not have made.
“In short, undue influence, which justifies the setting aside of a will, is a fraudulent influence, or such an overpowering influence as amounts to a legal wrong. It is close akin to coercion produced by importunity, or by a silent, resistless power, exercised by the strong over the weak, which could not be resister, so that the end reached is tantamount to the effect produced by the use of fear or force,” (quoting Will of Turnage, 208 N.C. 130, 131-32, 179 S.E. 332, 333 (1935).
In re: Will of Smith, 158 N.C. App. 722, 726 (2003); In re: Will of Priddy, 171 N.C. App. 395, 399 (2005):
Undue influence is “the fraudulent influence over the mind and will of another to the extent that the professed action is not freely done but is in truth the act of one who procures the result.”
In re: Will of Smith, at 726:
The elements of undue influence are:
The decedent is subject to influence;
The beneficiary has the opportunity to exert influence;
The beneficiary has a disposition to exert influence;
The resulting will indicates undue influence.
In re: Will of Andrews, 299 N.C. 52, 55 (1980):
Factors that may be considered when evaluating for undue influence:
Old age and physical and mental weakness;
That the person signing the paper is in the home of the beneficiary and subject to the beneficiary’s constant association and supervision;
That others have little or no opportunity to see the signer;
That the will is different from and revokes a prior will;
That it is made in favor of one with whom there are no ties of blood;
That it disinherits the natural objects of the signer’s bounty;
That the beneficiary has procured its execution (quoting In re: Will of Mueller, 170 N.C. 69, 71, 170 N.C. 28, 30, 86 S.E. 719, 720 (1915).
Undue influence requires more than mere influence or persuasion because a person can be influenced to perform an act that is nevertheless his voluntary action.
If a reasonable mind could infer from such evidence that the purported last will and testament is not the product of the testator’s free and unconstrained act, but is rather the result of overpowering influence sufficient to overcome the testator’s free will and agency, then the case must be submitted to the jury for its decision.”
In re: Estate of Forrest, 66 N.C. App. 222, 225, 311 S.E.2d 341, 343, aff’d per curiam, 311 N.C. 298, 316 S.E.2d 55 (1984):
A caveator need not demonstrate every factor named in Andrews to prove undue influence.
Hardee v. Hardee, 309 N.C. 753, 7567, 309 S.E.2d at 246 (1983):
Undue influence is generally proved by a number of facts, each one of which standing along may be of little weight, but taken collectively may satisfy a rational mind of its existence.
In re: Will of Thompson, 248 N.C. 588, 593, 104 S.E.2d 280, 285 (1958):
Evidence showing an opportunity and disposition to exert undue influence, the degree of susceptibility of the testator to undue influence, and a result which indicates that undue influence has been exerted is generally relevant and important.
In re: Will of Craven, 169 N.C. 641, 649, 169 N.C. 561, 568, 86 S.E. 587, 591 (1915):
Undue influence does not require moral turpitude or a bad or improper motive.
Influence is not necessarily undue, even if gained through persuasion or kindness and resulting in an “unequal or unjust disposition in favor of those who have contributed to the testator’s comfort and ministered to his wants, so long as such disposition is voluntarily made.
In re: Will of Turnage, 208 N.C. at 132, 179 S.E. at 333:
Undue influence may even be exerted by a person with the best of motives.
N.C.P.I.—Civil 860.20 Wills—Issue of Undue Influence:
"Was the execution of propounder's exhibit (state number) procured by undue influence?"
You are to answer this issue only if you have answered issue(s) (state number) in favor of the propounder.
On this issue the burden of proof is on the caveator. This means that the caveator must prove, by the greater weight of the evidence, that the execution of propounder's exhibit (state number) was procured by undue influence.
Undue influence occurs when a person's professed act is not his own, but is in fact the act of the person exerting the influence. Influence is undue when it causes a person to make a will which he would not have otherwise made. The undue influence must act upon the free will of the person at the time he executes his will.
The existence of undue influence is for you to determine from all the facts and circumstances in evidence. You may consider, together with all the other relevant facts and circumstances, the deceased's: [age]; [physical condition]; [mental condition]; [[dependence upon] [association with] [relationship with] [custody by] (state name of person exerting influence)]; [opportunity to [associate] [have a relationship] with persons other than (state name of person exerting influence)]; [relationship (by blood) to the beneficiary(ies) of the will]; [failure to include in the will those persons who would naturally be expected to receive the property of the deceased].
You may also consider the degree to which: [the writing is different from and purports to revoke a prior will]; [the deceased was influenced to execute the writing by (state name of person exerting influence)]; [(state any other relevant factors supported by the evidence)]; (Undue influence does not necessarily involve moral turpitude or even a bad or improper motive.); (Mere persuasion, without more, is not undue influence. A person may use fair argument and persuasion to induce another to execute a will in his favor.); (Influence gained by kindness and affection, without more, is not undue, even if it induces a person to make an unequal or unjust disposition of his property.)
Finally, as to this issue on which the caveator has the burden of proof, if you find by the greater weight of the evidence that the execution of propounder's exhibit (state number) was procured by undue influence, then it would be your duty to answer this issue "Yes" in favor of the caveator. If, on the other hand, you fail to so find, then it would be your duty to answer this issue "No" in favor of the propounder.
When the will is procured by undue influence, the entire will is invalid. If undue influence has been exerted to procure only a part of the will, the part of the will not caused by undue influence may be held valid. However, when only a portion of the will is alleged to have been procured by undue influence, the court may submit an issue as to which legacy or devise was procured by undue influence and which portion of the document constitutes the will of the deceased. See McDonald v. McLendon, 173 N.C. 172, 177, 91 S.E. 1017, 1019 (1917); Sumner v. Staton, 151 N.C. 198, 204, 65 S.E. 902, 906 (1909).
When the caveator contends that a fiduciary relationship existed between the propounder and the deceased, it may be necessary to submit an issue as to the existence of such fiduciary relationship. A fiduciary relationship exists where "there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence." Curl v. Key, 311 N.C. 259, 264, 316 S.E.2d 272, 275 (1984); see also McNeill v. McNeill, 223 N.C. 178, 181, 25 S.E.2d 615, 616 (1943).
In those cases in which a fiduciary relationship is found to exist, the burden of proof shifts to the propounder to prove “that the will was the free and voluntary act of the testator”. McNeill, 223 N.C. at 181, 25 S.E.2d at 617(quoting In re Will of Everett, 153 N.C. 83, 68 S.E.924, 925 (1910)); see also In re Estate of Ferguson, 135 N.C. App. 102, 106 518 S.E.2d 796, 799 (1999) (citing In re Will of Atkinson, 225 N.C. 526, 530, 35 S.E.2d 638, 640 (1945) for the proposition that “When a fiduciary relationship exists between a propounder and testator, a presumption of undue influence arises and the propounder must rebut that presumption.”).