Article Argues that Undue Influence Doctrine Should be Abolished
(associate professor of law, Oklahoma City University) has published her article entitled Why the Testamentary Doctrine of Undue Influence Should be Abolished, 58 U. Kan. L. Rev. 245 (2010).
An excerpt from the article is below:
Part II [of the article] presents the history of the doctrine [of undue influence] as it evolved from an overt tool to keep wealth within family and class lines to a legal one that purported to protect testamentary freedom. Part III summarizes the work of other scholars showing that the doctrine fails to achieve its purported goals of protecting testamentary intent, and, instead, often ignores such intent in the interest of maintaining social norms. Part III then addresses the two main reasons for the doctrine’s failure. First, the notion of self underlying courts’ decisions in undue influence cases fails to comport with the findings of contemporary psychology and, in fact, undermines the very testamentary autonomy the doctrine claims to protect. Exercising a misguided notion of individual autonomy, juries often fail to recognize valid interdependent relationships between testators and non-relatives because such relationships do not conform to jurors’ personal experiences. When juries do recognize such relationships, they do so because the relationship in question reflects their own experiences of interdependence. This practice does little to advance testamentary freedom. The principle of testamentary freedom is not necessary to protect conventional bequests that conform to general experience; rather, it exists to carry out devises that fail to conform to social norms yet reflect the testator’s will. Second, the doctrine has failed because it is so vague that it allows courts to reinforce these, and other, biases.
Part IV shows how the continued use of the doctrine generates serious costs, both in litigation and in threats of litigation. Part V isolates the policy concerns–protecting the elderly from coercion and overreaching, and protecting a testator from future mental decline–that underlie the doctrine and outlines other legal doctrines that better serve these policies. Part VI suggests more effective ways to protect elders without undermining testamentary freedom through crime solving and stricter will requirements. Finally, Part VII challenges us as a society to decide how much we care about keeping money in families, and if we do care, it challenges us to enact statutory schemes that protect family members.