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-sixth up, Montana.

MCA § 28-2-407 What constitutes undue influence:

Undue influence consists of:

The use by one in whom a confidence is reposed by another person or who holds a real or apparent authority over the other person of the confidence or authority for the purpose of obtaining an unfair advantage over the other person;
Taking an unfair advantage of another person’s weakness of mind; or
Taking a grossly oppressive and unfair advantage of another person’s necessities or distress.

In re Estate of Mead, 2014 MT 264, 336 P.3d 362:

To establish undue influence, a party must present specific acts showing that undue influence actually was exercised upon the mind of the testator directly to procure the execution of the will (citing In re Estate of Harmon, 2011).

A trier of fact should consider the opportunity for undue influence, including the testator’s susceptibility to influence, and whether the disposition of property was natural.

In re Estate of Harms, 2006 MT 320, 149 P.3d 557:

The mere opportunity to exercise undue influence on the testator is not sufficient to prove undue influence to invalidate a will. Rather, the opportunity to exercise undue influence is to be considered and correlated with the alleged acts of influence to determine if the acts amount to undue influence.

In re Estate of Harmon, 2011 MT 253 P.3d 821:

The existence of a confidential relationship, without evidence of a specific act of undue influence, is insufficient to show that the relationship was used for the purpose of obtaining an unfair advantage.

In re Estate of Lightfield, 2009 MT 244, 213 P.3d 468:

A finding of undue influence may be based on circumstantial evidence.

MCA § 52-3-803(3) Exploitation:

“Exploitation” means:

(a) the unreasonable use of an older person or a person with a developmental disability or of a power of attorney, conservatorship, or guardianship with regard to an older person or a person with a developmental disability in order to obtain control of or to divert to the advantage of another the ownership, use, benefit, or possession of or interest in the person's money, assets, or property by means of deception, duress, menace, fraud, undue influence, or intimidation with the intent or result of permanently depriving the older person or person with a developmental disability of the ownership, use, benefit, or possession of or interest in the person's money, assets, or property;

(b) an act taken by a person who has the trust and confidence of an older person or a person with a developmental disability to obtain control of or to divert to the advantage of another the ownership, use, benefit, or possession of or interest in the person's money, assets, or property by means of deception, duress, menace, fraud, undue influence, or intimidation with the intent or result of permanently depriving the older person or person with a developmental disability of the ownership, use, benefit, or possession of or interest in the person's money, assets, or property;

(c) the unreasonable use of an older person or a person with a developmental disability or of a power of attorney, conservatorship, or guardianship with regard to an older person or a person with a developmental disability done in the course of an offer or sale of insurance or securities in order to obtain control of or to divert to the advantage of another the ownership, use, benefit, or possession of the person's money, assets, or property by means of deception, duress, menace, fraud, undue influence, or intimidation with the intent or result of permanently depriving the older person or person with a developmental disability of the ownership, use, benefit, or possession of the person's money, assets, or property.

MCA § 72-2-813(1)(f) Vulnerable Adult:

"Vulnerable adult" means a person who is:

(i) 60 years of age or older;

(ii) functionally, mentally, or physically unable to provide self-care;

(iii) deemed incapacitated under 72-5-316;

(iv) developmentally disabled;

(v) admitted to a facility licensed by the department of public health and human services;

(vi) receiving services from a home health agency or hospice provider;

(vii) receiving services from an individual provider; or

(viii) self-directing care and receiving services from a personal aide for a physical disability.

MCA 72-3-310 Burdens in contested cases:

In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue, and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases and, if they are also petitioners, prima facie proof of death and venue. Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof.

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