50 State Undue Influence Project: Kansas 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. Sixteenth up, Kansas.
In re: Estate of Cresto 358 P.3d 831, 302 Kan. 820 (2015):
Undue Influence is defined as “such coercion, compulsion, or constraint that the document maker’s free agency is destroyed, and because the maker’s power of resistance has been overcome, the maker is obliged to adopt the will of another rather than exercise the maker’s own.”
Courts can use the “suspicious circumstances doctrine” as proof of undue influence. “Under the suspicious circumstances doctrine, a person contesting a testamentary document without direct evidence that it was the product of undue influence can nevertheless establish a presumption of undue influence by showing that (1) the person who is alleged to have exerted undue influence was in a confidential and fiduciary relationship with the person executing the testamentary document, and (2) there were suspicious circumstances surrounding the making of the testamentary document.”
“If an opponent to a testamentary document establishes the existence of suspicious circumstances, a presumption of undue influence is created which shifts the burden to the proponent of the document to rebut the presumption of undue influence.”
From Kansas Bar Association (2019):
“Kansas law has developed a two-prong test for determining whether undue influence invalidated a will: (1) Plaintiffs/Petitioners must show that the defendant was in a confidential and fiduciary relationship with the testator; and (2) that there were suspicious circumstances surrounding the making of the will). Kansas courts have neither defined ‘confidential relationship’ nor ‘suspicious circumstances’ and have determined that this a question of fact which must be determined by the facts of the case by you, the jurors.”
KS Stat § 59-605. Preparation of will or provision of will that gives any devise or bequest to writer or preparer:
Any provision in a will, written or prepared for another person, that gives the writer or preparer or the writer's or preparer's parent, children, issue, sibling or spouse any devise or bequest is invalid unless:
(a) The writer or preparer is related to the testator by blood, marriage or adoption and the devise or bequest is not more than the writer or preparer or the writer's or preparer's parent, children, issue, sibling or spouse would receive under the laws of intestate succession, if the property passed in that manner; or
(b) it affirmatively appears that the testator had read or knew the contents of the will and had independent legal advice with reference thereto.
KS Stat § 58a-406. Creation of trust induced by fraud, duress, or undue influence:
(a) A trust is void to the extent its creation was induced by fraud, duress, or undue influence.
(b) Any provision in a trust, written or prepared for another person, that transfers property and gives the writer or preparer or the writer or preparer’s parent, children, issue, sibling or spouse any direct or indirect benefit is invalid unless:
(a) The writer or preparer is related to the settlor by blood, marriage or adoption and the benefit is not more than the writer or preparer or the writer or preparer’s parent, children, issue, sibling or spouse would receive under the laws of intestate succession, if the transfer or benefit passed in that manner; or
(b) It affirmatively appears that the settlor had read or knew the contents of the trust and had independent legal advice with reference thereto.