50 State Undue Influence Project: West Virginia 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. Forty-eighth up, West Virginia.
Cale v. Napier (1991):
Undue influence cannot be based on suspicion, possibility, or guess that such undue influence had been exercised, but must be proved and the burden of proof of such issue rests with the party alleging it (citing Floyd v. Floyd, 148 W.VA. 183, 133 S.E.2d 726 (1963)).
Advanced age or physical or mental infirmities of the testator can be shown to establish that undue influence was exerted.
In a will contest on a charge of undue influence, evidence is admissible to show that the testator had previously either expressed an intention to make a contrary disposition of the property or had a prior will which made a disposition contrary to that of the contested will.
Undue influence which will invalidate a will is never presumed but must be established by proof which, however, may be either direct or circumstantial (citing Ritz v. Kingdon, 139 W.VA. 189, 79 S.E.2d 123 (1953)).
Rules of Practice and Procedure for Financial Exploitation Civil Proceedings, Rule 2(i):
Undue influence means excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity. In determining whether alleged financial exploitation was produced by undue influence, all of the following may be considered:
The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, diminished capacity, illness, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.
The influencer’s apparent authority. Evidence of apparent authority may include but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual advisor, expert, intimate partner, or other qualification.
The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, controlling necessaries of life, Medication, the victim’s interactions with others, access to information, or sleep; use of affection, intimidation, or coercion; or initiation of changes at inappropriate times and places, and claims of expertise in effecting changes.
The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences of the victim, any divergences from the victim's prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship. Evidence of an inequitable result, without more, is not sufficient to prove undue influence.