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. Sixth up, Colorado.

Colorado Jury Instruction 34:14 Undue Influence – Defined:

Undue influence means words or conduct, or both, which, at the time of the making of a will:

1. Deprived the person making the will of his free choice; and

2. Caused the person making the will to make it or part of it differently than he otherwise would have.

Colorado Jury Instruction 34:15 Undue Influence – Factors to be Considered:

Undue influence cannot be inferred solely because of motive or opportunity.

Influence gained by reason of love, affection, or kindness, or by appeals to such feelings, is not undue influence.

You may consider the provisions in the will in determining whether or not the testator was acting under undue influence at the time he made the will. However, in considering any particular provisions in the will, you must consider them along with all the other provisions in the will and along with all other evidence relating to the making of the will.

A person 18 years or older and of sound mind and not acting under undue influence may will his property to whomever he desires. The fact that a will may contain provisions that differ from your idea of what would be proper is not enough to invalidate the will for undue influence.

Ofstad v. Sarconi 252 P.2nd 94 [Colo. 1952]:

In this case, the Colorado Supreme Court gave the following guidelines that may or may not indicate undue influence:

1. There is a confidential relationship between the testator and the influencer;

2. There are terms in the estate plan that clearly benefit the influencer;

3. There is some sort of mental and/or physical illness in the testator; and

4. The new estate plan is kept secret from the testator’s natural heirs.

The Ofstad Court listed certain factors a court may take into account when evaluating undue influence, including the following:

1. The physical condition of the testator, arising from age, sickness, suffering, by reason of disease or otherwise, or any other cause;

2. The condition of the testator’s mind at and before the time of the execution of the will in controversy;

3. The execution of the alleged will and its contents;

4. The execution of any prior will by the testator;

5. The situation of the parties present when the alleged will was executed;

6. The relations existing between the testator and the parties related to the will contest respectively at and before the execution of the will in question;

7. The testator’s family and connections;

8. The terms upon which the testator stands with family and connections;

9. The claims family or connections might have had upon his money/property by reason of blood relationship or otherwise;

10. The condition and relative situation of the legatees and devisees named in the will;

11. The situation of the testator and the circumstances under which the will was made;

12. Previous conduct on the part of the testator which might indicate his normal testamentary wishes; and

13. Every fact or circumstance which tends to throw any light upon the question of potential undue influence.

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