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. Twenty-fourth up, Mississippi.

Murray v. Laird, 446 So.2d 575, 578 (Miss.1984):

“The law in this state on fiduciary or confidential relationships and undue influence is well settled…its application has been made to both inter vivos and testamentary transactions.”

Once the fact that a confidential relationship has been established, the presumption of undue influence arises and must be rebutted.

In re Launius, 507 So. 2d 27, 30 (Miss. 1987):

A presumption of undue influence extends to every possible case in which a fiduciary relation exists as a fact, in which there is confidence reposed on one side, and the resulting superiority influence on the other.

Madden v. Rhodes, 626 So. 2d 608, 617 (Miss. 1993):

Confidential and Fiduciary Relationships: Whenever there is a relation between two people in which one person is in a position to exercise a dominant influence upon the other because of the latter’s dependency upon the former, arising either from weakness of [the] mind or body, or through trust, the law does not hesitate to characterize such relationship as fiduciary in nature.

Taylor v. Welch, 609 So. 2d 1225, 1231-32 (Miss. 1992)(quoting Mullins v. Ratcliff, 515 So. 2d 1183, 1191-92 (Miss. 1987)):

The relationship must reflect a dominant, overmastering influence which controls over a dependent person or trust justifiably reposed.

In re Estate of Sandlin v. Sandlin, 790 So. 2d 850, 853 (Miss. Ct. App. 2001):

Factors to be considered in determining the existence of a confidential relationship:
Whether one person has to be taken care of by others;
Whether one person maintains a close relationship with another;
Whether one person is provided transportation and has their medical care provided for by another;
Whether one person maintains joint accounts with another;
Whether one is physically or mentally weak;
Whether one is of advanced age or poor health; and
Whether there exists a power of attorney between the one and another.

McDowell v. Pennington, 394 So. 2d 323 (Miss. 1981):

The participation of the beneficiary/grantee, or someone closely related to the beneficiary, arouses suspicious circumstances that negate independent action.

In re Launius, 507 So. 2d 27, 30 (Miss. 1987):

Once the circumstances give rise to a presumption of undue influence, then the burden of going forward with the proof shifts to the grantee/beneficiary.

The beneficiary must prove by clear and convincing evidence:

Good faith on the part of the grantee/beneficiary;
Grantor’s full knowledge and deliberation of his actions and their consequences; and
Advice of (a) a competent person, (b) disconnected from the grantee, and (c) devoted wholly to the grantor/testator’s interest.

Murray v. Laird, 446 So.2d 575, 578 (Miss.1984):

(1) Important factors on the question of good faith are, (a) the determination of the identity of the initiating party in seeking preparation of the instrument, (b) the place of the execution of the instrument and in whose presence, (c) what consideration and fee were paid, if any, and (d) by whom paid, and (e) the secrecy or openness given the execution of an instrument. The Court recognizes that prior disclosure of a donation is not a prerequisite to its *579 validity; but the disclosure of intent made prior to execution of an instrument helps dilute the undue influence presumption.

(2) Factors important to address the grantor/testator's knowledge, at the time of execution of any instrument are (a) his awareness of his total assets and their general value, (b) an understanding by him of the persons who would be the natural inheritors of his bounty under the laws of descent and distribution or under a prior will and how the proposed change would legally affect that prior will or natural distribution, (c) whether non-relative beneficiaries would be excluded or included and, (d) knowledge of who controls his finances and business and by what method, and if controlled by another, how dependent is the grantor/testator on him and how susceptible to his influence.

(3) Turning now to the last factor to be discussed, (a) advice of a competent person, (b) disconnected from the grantee, and (c) devoted wholly to the grantor/testator's interest, we note three factors to meet. The advisor has to have conferred with the grantor/testator prior to the document drafting. McDowell v. Pennington, supra. However, "independent" advice in this sense means advice separate and apart from the beneficiary, both in the initiation and execution of the instrument.

As a necessary adjunct to "advise and counsel", an advisor must have (a) knowledge upon which to base advice. Therefore, all factors previously named above with reference to the grantor/testator's full knowledge of his circumstances and the grantee/beneficiary's good faith must also be delved into by the advisor as a basis for his recommendation. The advisor needs to (b) know of the relationship of the grantor/testator to any beneficiary/grantee and the purpose or reason of an unequal division or distribution to donees/heirs of the same class, (c) the relationship of the non-blood donee and the duration of that relationship; (d) the relationship, or lack of relationship, to kinsmen, (e) knowledge of tax consequences (f) information as to the marital background, age, physical and mental health of a grantor/testator. (g) Inquiry by the advisor into whether the disposition is the free and voluntary act of an independent thinking, strong willed individual or whether the decision is imposed by the dominance of an over-reaching person will help him render better advice. All these factors will help the advisor learn of antecedent agencies that gave rise to the presumption of undue influence.

The grantor does not need to take the advisor’s advice (citing Montgomery v. Willbanks, 198 Okl. 684, 181 P.2d 240 (1947)).