50 State Undue Influence Project: Hawaii 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. Eleventh up, Hawaii.
In re: Will of Naoiwi, 14 Haw. 43, 45 (1902):
It is appropriate to deny probate of a will when there is sufficient evidence to support a jury verdict of undue influence.
In re: Estate of Herbert, 979 P.2d 39 (1999):
To sustain a claim of undue influence, it must appear that the influence exercised amounted to fraud or coercion destroying free agency, or the substitution of another’s will for that of the testator or testatrix so that the product is not that of the testator or testatrix.
It is sometimes said that the elements of undue influence are:
Susceptibility of [the] testator [or testatrix];
Opportunity for the exertion of undue influence;
Disposition to exert undue influence; and
The Result, in the will, of such undue influence
Elements of undue influence may be:
Susceptibility to undue influence;
Opportunity to influence;
Disposition to influence; and
Coveted Result
(citing Estate of Kamesar, 81 Wis.2d 151, 259 N.W.2d. 733, 737 (1977); 1 Page on the Law of Wills, William J. Bowe and Douglas H. Parker, eds., 1960); and In re: Estate of Anders, 88 S.D. 631, 226 N.W.2d 170, 173-174 (1975).
The co-called ‘SODR’ factors have evolved to aid courts in determining whether to deny probate of a will based upon the theory of undue influence. Well established Hawai’i case law involving undue influence has impliedly recognized and adopted the ‘SODR’ factors (citing In re: Will of Charles Notley, 15 Haw. 435, 440-41 (1904); in re: Estate of Afong, 26 Haw. 147, 152-54 (1921)). Therefore, Hawai’i has already recognized and impliedly adopted the "SODR" factors in determining whether the exertion of undue influence resulted in the execution of a challenged will.
This court stated that undue influence may be shown by circumstantial evidence.
Mental weakness on the part of the testator and general control over him, and desire and opportunity to control him in the disposition of his property by will may be shown but only in so far as it tends to show that undue influence was in fact operative at the time of the execution, and in such cases the indirect evidence must be of a clear and convincing character; indeed, it is said that it must be not merely consistent with the theory of undue influence, but inconsistent with a contrary theory. Mere suspicion and conjecture are not enough.
Character evidence is generally admissible to establish undue influence. Evidence which tends to prove or disprove the subordination of the will of the testator to others must, except in extreme cases, take a very wide range (citing 3 Page on the Law of Wills § 29.78, at 577 (William J. Bowe and Douglas H. Parker, eds., 1961)).
Methods of proving character:
1. Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
2. Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of the person's conduct.
Thus, character evidence of the disposition to exert undue influence over the testator or testatrix at the time of a will's execution may be substantively admissible (citing H.R.E. Rule 405).
A trial court should not direct the verdict in favor of the proponent when evidence of all four of the SODR factors is presented. Where the evidence is conflicting, most jurisdictions submit the case to the jury and instruct the jury that the burden of persuasion is upon the contestant to establish by a preponderance of the evidence the existence of undue influence.
Will of Charles Notley, 15 Haw. 435, 440-441 (1904):
"Mental weakness on the part of the testator" is, in effect, the susceptibility of the testator to be unduly influenced.
"[O]pportunity to control him in the disposition" is the opportunity to exert undue influence.
"[D]esire…to control him in the disposition" is the disposition to exert undue influence.
Will of Notley's focus upon the disposition of the property equals the factor of the "result of the disposition."
Undue influence must be proved to have operated as a present constraint at the very time of the making of the will.