50 State Undue Influence Project: Illinois 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. Thirteenth up, Illinois.
Illinois Civil Jury Instructions 200.00 § C.1 Undue Influence (WILLS):
Influence is “undue” when it “prevents the testator from exercising his own will in the disposition of his estate” such that the testator's will is rendered more the will of another (Franciscan Sisters Health Care Corp. v. Dean, 95 Ill.2d 452, 448 N.E.2d 872, 877, 69 Ill.Dec. at 963 (1983)).
In order to invalidate a will, the undue influence must have been “directly connected with the execution of the will” and it must have operated at the time the will was made. (Schmidt v. Schwear, 98 Ill.App.3d 336, 424 N.E.2d 401, 405, 53 Ill.Dec. 766, 770 (1981))
Undue influence can be exerted by direct beneficiaries or by third parties, such as the spouse of a beneficiary (Swenson v. Wintercorn, 92 Ill.App.2d 88, 234 N.E.2d 91, 98 (1968)).
Influence need not be exerted in an untoward manner to be undue. Even kindness and affection can constitute undue influence if they destroy the testator's “free agency.” (Kelley v. First State Bank of Princeton, 36 Ill.Dec. at 575).
In re: Estate of Hoover, 155 Ill. 2d 402, 615 N.E. 2d 736, 185 Ill. Dec. 866 (1993):
“What constitutes undue influence cannot be defined by fixed words and will depend upon the circumstances of each case.”
“As this court has previously stated, undue influence which will invalidate a will is ‘any improper…urgency or persuasion whereby the will of a person is overpowered and he is induced to do or forebear an act which he would not do or would do if left to act freely,” (at 740).
Evidence of undue influence may be wholly inferential and circumstantial.
The influence may be that of a beneficiary or of a third person on behalf of a beneficiary.
Schmidt v. Schwear, 98 Ill. App. 3d 336, 424 N.E. 2d 401, 53 Ill. Dec. 766 (1981):
In order to set aside a will, the undue influence must be directly connected with the act of execution of the document and must operate at the time of the execution.
Old age and disability of the testator can be taken into account when determining whether undue influence occurred.
Butler v. O’Brien, 8 Ill. 2d 203:
“Proof of the mental condition of the testator a reasonable time before or after the making of a will may be received [into evidence] where it tends to show mental condition at the time of the execution of the instrument. A mental condition show to exist is presumed to continue, if it be of a continuous nature.”
Sulzberger v. Sulzberger, 372 Ill. 240, 23 N.E. 2d 46 (1939):
Just because the alleged influencer was not present at the signing of the will, that does not mean undue influence did not occur.
“The feebler the mind of the testator, no matter from what cause,--whether from sickness or otherwise,--the less evidence will be required to invalidate the will of such person.”
Estate of Ciesiolkiewicz, 243 Ill. App. 3d 506, 611 N.E. 2d 1278, 183 Ill. Dec. 630 (1993):
The party asserting that a will was executed as a result of undue influence must establish the following elements to raise such a presumption: (1) a fiduciary relationship between the testator and a person who receives a substantial benefit under the will; (2) a testator in a dependent situation in which the substantial beneficiaries were in dominant roles; (3) a testator who reposed trust and confidence in such beneficiaries; and (4) a will prepared or procured and executed in circumstances wherein such beneficiaries were instrumental or participated (citing Redmond v. Steele (1955), 5 Ill.2d 602, 609-10, 126 N.E.2d 619, 624; Tidholm v. Tidholm (1945), 391 Ill. 19, 25, 62 N.E.2d 473, 476; Julian, 227 Ill. App.3d at 376, 592 N.E.2d at 44; Jessman, 197 Ill. App.3d at 419-20, 554 N.E.2d at 721).
A fiduciary relationship is established in the undue influence context where there is a special confidence reposed in one who, by reason of such confidence, must act in good faith and with due regard to the interests of the person reposing that special confidence. (citing In re Estate of Osborn (1984), 128 Ill. App.3d 453, 455, 470 N.E.2d 1114, 1117.) This relationship "`may exist as a matter of law between attorney-client, guardian-ward, trustee-beneficiary, and the like, or it may be the result of a more informal relationship — moral, social, domestic or even personal in its origin. [Citations].'" (Osborn, 128 Ill. App.3d at 455, 470 N.E.2d at 1117, quoting Swenson v. Wintercorn (1968), 92 Ill. App.2d 88, 100, 234 N.E.2d 91, 97.)
If these elements are proven, the burden shifts to the defendant to prove a lack of undue influence.
Illinois Civil Jury Instructions 700.00 § II.E.2. Undue Influence (CONTRACTS):
Undue influence exists when one person wrongfully exercises control over another so as to substitute that person's will for the will of the other. Britton v. Esson, 260 Ill. 273, 103 N.E. 218 (1913). In certain circumstances, the undue influence may be exerted by one not a party to the dispute. Restatement (2d) of Contracts §177(3). Undue influence cases involve the existence of a fiduciary relationship (arising as a matter of law or fact) when a special confidence is reposed in one who in equity and conscience is bound to act in good faith and with due regard to the interest of the other party. A fiduciary relationship exists as a matter of law between attorney and client, guardian and ward, principal and agent, and may exist in other cases where one party is heavily dependent upon the advice of another. Carey Electric Contracting, Inc. v. First National Bank of Elgin, 74 Ill.App.3d 233, 392 N.E.2d 759, 763; 30 Ill.Dec. 104 (2d Dist.1979); Oil Exp. Nat., Inc. v. Burgstone, 958 F.Supp. 366, 370 (N.D.Ill.1997). Once a fiduciary relationship has been established, there is a presumption that any transaction that benefits the dominant party at the expense of the other party is the result of undue influence. Franciscan Sisters Health Care Corp. v. Dean, 95 Ill.2d 452, 448 N.E.2d 872, 69 Ill.Dec. 960 (1983); Brown v. Commercial National Bank of Peoria, 42 Ill.2d 365, 247 N.E.2d 894, 896 (1969); Turner v. Black, 19 Ill.2d 296, 166 N.E.2d 588, 593 (1960); Works v. McNeil, 1 Ill.2d 47, 115 N.E.2d 320, 322 (1953).
Illinois Civil Jury Instructions 70012F [6] Undue Influence—Fiduciary Relationship Claimed (CONTRACTS):
Undue influence is more than just advice or persuasion or an appeal to [defendant's name]'s(s') own reasoning. In deciding whether there was undue influence, you may consider whether, before the contract was made, there was full disclosure to [defendant's name] of all the material circumstances surrounding the contract, whether the contract was fair, and whether [defendant's name] had the opportunity to obtain independent advice.