50 State Undue Influence Project: Oregon 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. Thirty-seventh up, Oregon.
Harris v. Jourdan (2008):
Undue influence has been characterized as a species of fraud by which a beneficiary gains an unfair advantage from wrongful conduct.
The focus of the inquiry is on the conduct of the person allegedly exercising undue influence and whether that person gained an unfair advantage by devices which reasonable people regard as improper.
The burden of proving that a will is the product of undue influence is on the contestant.
Under certain circumstances, there may arise a suspicion of undue influence so as to require the beneficiary to go forward with the proof and present evidence sufficient to overcome the adverse inference.
The suspicion of undue influence arises where (1) the contestant first proves that a confidential relationship existed between the testator and the beneficiary, such that the beneficiary held a position of dominance over the testator and (2) the contestant establishes the existence of suspicious circumstances surrounding the procurement or execution of the will.
In re Reddaway’s Estate, 329 P.2d 886 (1958):
The theory which underlies the doctrine of undue influence is that the testator is induced by various means to execute an instrument which, although his, in outward form, is in reality not his will, but the will of another person which is substituted for that of testator. Such an instrument, in legal effect, is not a will at all.
Every will is the product of some kind of influence. It is the task of the courts to determine whether the influence in the particular case is “undue.”
Seven factors that might indicate suspicion of undue influence:
Procurement: the beneficiary participates in the preparation of the will.
Lack of independent advice: A beneficiary who participates in the preparation of the will and has a confidential relationship with the testator has a duty to have the testator receive independent advice.
Secrecy and haste.
Change in the testator’s attitude toward others (following close association with the beneficiary).
Change in the testator’s plan of disposing of property.
An unnatural or unjust gift to the beneficiary as compares to natural heirs.
The testator is susceptible to undue influence.