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. Fortieth up, South Carolina.

Macaulay v. Wachovia Bank of S.C., N.A., 351 S.C. 287, 295, 299, 569 S.E.2d 371, 375-76, 378 (Ct. App. 2002):

A contestant of a will challenging the validity of the will on the basis of undue influence bears the burden of proof and must present evidence showing the testator’s will was overborne by that of the influencer or someone acting on the influencer’s behalf.

Calhoun v. Calhoun, 277 S.C. 527, 532, 290 S.E.2d 415, 418 (1982):

The undue influence necessary to invalidate a will must reach a level of force and coercion, not the influence of affection and attachment nor the mere desire of gratifying the wishes of another.

The evidence of undue influence will be mainly circumstantial because undue influence is often exercised behind closed doors, preventing any direct proof.

Russell v. Wachovia Bank, N.A., 353 S.C. 208, 217, 578 S.E.2d 329, 333 (2003):

Successful will contests asserting undue influence often include evidence of threats, force, restrictive visitation, or an existing fiduciary relationship.

Hembree v. Estate of Hembree, 311 S.C. 192, 196, 428 S.E.2d 3, 5 (Ct. App. 1993):

Circumstances must unmistakenly and convincingly point to the substitution of another’s will for that of the testator.

Brown v. Pearson, 326 S.C. 409, 422, 483 S.E.2d 477, 484 (Ct. App. 1997):

A confidential or fiduciary relationship exists when one imposes a special confidence in another, so that the latter, in equity and good conscience, is bound to act in good faith and with due regard to the interest of the one imposing the confidence.

Hairston v. McMillan, 387 S.C. 439, 447, 692 S.E.2d 549, 553 (Ct. App. 2010):

The existence of a fiduciary relationship between the influencer and the testatrix creates a rebuttable presumption of undue influence.

Howard v. Nasser, 364 S.C. 279, 288, 613 S.E.2d 64, 68–69 (Ct. App. 2005):

Although proponents of the will must present evidence in rebuttal when a fiduciary relationship exists, they do not have to affirmatively disprove the existence of undue influence. Instead, the contestants of the will still retain the ultimate burden of proof to invalidate the will.

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