50 State Undue Influence Project: Wisconsin 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-ninth up, Wisconsin.
Kuehn vs. Kuehn, 11 Wis. 2d 15, 24, 104 N.W.2d 138 (1960):
Undue influence is that which commands or compels the exercise of volition on the part of the person subject to such influence so that the result is the accomplishment of the will or purpose of the one using influence rather than, in fact, the will or purpose of the donor.
Will of Freitag, 9 Wis. 2d 315, 317, 101 N.W.2d 108 (1960):
Undue influence is composed of the following:
Susceptibility of the testator;
Opportunity to exercise undue influence on the testator;
Disposition on the part of the party charged to influence unduly such susceptible person for the purpose of procuring an improper favor for themself or another; and
Coveted Result
When three of the four elements are proven, only “slight additional evidence” is needed as to the existence of the fourth element.
Will of Faulks, 246 Wis. 319, 360, 17 N.W.2d 423 (1945):
Undue influence can be proven if there was a confidential or fiduciary relationship between the testator and the influencer and if there are suspicious circumstances surrounding the execution of the will or gift.
In Matter of Estate of Dejmal, 95 Wis. 2d 141, 154, 289 N.W.2d 813 (1980):
Undue influence must be proven by clear and convincing evidence.
Susceptibility to undue influence can be caused by the following:
Age;
Personality;
Physical and mental health; and
Ability to handle business affairs.
Age, on its own, is not indicative of undue influence unless it is coupled with a deteriorating physical or mental condition.
If consideration of the above factors demonstrate that the testator was unusually receptive to the suggestions of others and consistently deferred to others on matters of utmost personal importance, then the element is established.
Estate of Brehmer, 41 Wis. 2d 349, 356, 164 N.W.2d 318 (1969):
A disposition to influence requires a willingness to do something wrong or unfair to obtain a share. It requires proof of grasping or overreaching affirmative steps on the part of the person charged.
Estate of McGonigal, 46 Wis. 2d 205, 214, 174 N.W.2d 256 (1970):
There is nothing wrong with aiding and comforting a failing testator; that is not undue influence.
Will of Ehlke, 244 Wis. 115, 121, 11 N.W.2d 497 (1943):
Undue influence exercised in secret, undercover, and with little opportunity for the presence of disinterested parties usually rests wholly upon circumstantial evidence.
In re: Estate of Malnar, 73 Wis. 2d 192, 243, N.W.2d 435 (1976):
When the proponent, a confidant of the decedent and the sole beneficiary, actively participated in the procurement, drafting, and execution of the will under highly suspicious circumstances, a presumption of undue influence was raised.