Consider the following situation: a long-standing client contacts you to assist in the revision of her elderly mother’s will after Mom’s recent release from the hospital. You understand that the client has had a very close and loving relationship with Mom over the years and has regularly assisted her with day-to-day activities. You schedule an appointment and your client brings Mom to the office. Given the relationships involved, you permit your client to sit in while you interview Mom. You learn that Mom wants to change her bequests to favor your client at the expense of her siblings and name her as executor of Mom’s estate. You proceed to memorialize Mom’s wishes.

The above scenario seems innocent enough but is rife for a potential claim under the doctrine of “undue influence.” It also poses an unethical professional conflict of interest. In the absence of proper inquiry and precaution, the execution and probate of this revised will could expose the estate to a claim, result in the invalidation of the revised will, and subject you to a malpractice claim as well as an ethics inquiry, even if everyone involved has acted in good faith.

Of course, courts attempt to preserve the right of an individual to dispose of property as he or she sees fit. In the illustration above, however, the presumption of undue influence almost certainly will attach. “Undue influence” has been defined as mental, moral or physical persuasion which has destroyed the free agency of a testator by preventing the testator from following the dictates of his own mind and accepting instead the domination and influence of another. In re Neuman’s Estate, 133 N.J. Eq. 532 (E.&A. 1943); see also In re Miles, 176 N.J. 282 (2003). Put differently, undue influence may exist where the testator’s true intent is affected by the influence of another. The result of a finding of undue influence may be the complete invalidation of a will.

Typically, the burden of proving the existence of actionable undue influence is on the person attacking the will. In re Davis’ Will, 14 N.J. 166 (1953). Under New Jersey law, however, there is an exception. Where a “confidential relationship” exists between a testator and the proponent of a will — presumably, your client-daughter in the above illustration — and “suspicious circumstances” are present, the law provides for a presumption of undue influence. In re Will of Landsman, 319 N.J. Super. 252 (App. Div. 1999); Haynes v. First Nat’l State Bank, 87 N.J. 163 (1981). The initial burden of demonstrating that those two elements exist is on the person attacking a will, but, once shown, the burden of proving that there was no undue influence shifts to the proponent of the will. What’s more, in many circumstances, that presumption must be rebutted by the heightened standard of “clear and convincing” evidence. This would no doubt come as quite a rude surprise to your client-daughter if you had not prepared her and taken adequate steps to insulate Mom’s wishes from attack.

The “confidential relationship” between the testator and the person alleged to have exerted undue influence can vary with each case. It is most notably marked by a relationship that is sustained by confidence and trust. Applied to our illustration above, courts have held that the relationship between a parent and child qualifies, especially where the child is caring for an elderly parent and trust is reposed by reason of the testator’s dependence. Haynes, 87 N.J. at 176. Other examples of a confidential relationship can include a fiduciary relationship, such as between a guardian and ward, principal and agent, and lawyer and client. They also can include a relationship between the testator and his or her physician, nurse, spiritual advisor or medical advisor. See, e.g., In re Blake’s Will, 21 N.J. 50 (1956). The key consideration is whether it is a relationship of trust or dependence. Pascale v. Pascale, 113 N.J. 20, 34 (1988); In re Estate of Stockdale, 196 N.J. 275, 303 (2008). Under our illustration, a court could easily find that the requisite confidential relationship existed, given Mom’s age, her reliance on your client for assistance and their close relationship. See In Re Estate of Ostlund, 391 N.J. Super. 390, 402 (App. Div. 2007). For example, in In re Haynes, the court found that the requisite confidential relationship existed when the decedent had been “aged,” “afflicted by the debilitations of advanced years” and dependent upon her daughter for “companionship, care and support.” The existence of a power of attorney is another consideration in determining whether a confidential relationship exists. Estate of Zarillo, 2012 N.J. Super. LEXIS 1960, *38.

The second requirement for establishing a presumption of undue influence is whether “suspicious circumstances” exist. Notably, under New Jersey case law these circumstances “need be no more than slight.” Haynes, 87 N.J. 163 (1981). Those circumstances could include: a drastic change in testamentary plan; making the proponent of the will the sole beneficiary; leaving the proponent a greater share of an estate than would otherwise “naturally occur”; the proponent’s initiation of proceedings for the preparation of the revised will; the proponent’s actual participation in the preparation of the will; the proponent’s presence at the execution of the will; the lack of independent legal counsel; or an unexplained change in the testator’s attitude. See In re Estate of Raynolds, 132 N.J. Eq. 141, 148 (Prerog. Ct. 1942).

Therefore, in our illustration, where the daughter presented Mom to the daughter’s attorney for revision of the will while the daughter had been caring for Mom, and the daughter then inherits under the will more than she otherwise would have naturally, any of her siblings likely could assert a viable and prima facie undue influence challenge to Mom’s revised will. Your client-daughter will then be forced to defend and clearly demonstrate that the revision reflected Mom’s bona fide intent. Moreover, you very well may not be the lawyer defending the estate but instead may be called as a lawyer-witness or, even worse, named as a defendant in a subsequent legal malpractice action.

The significance of the undue influence presumption is that the eventual proponent of the will, presumably the daughter, will bear the burden of demonstrating that there was no undue influence. The standard of proof for rebutting such a presumption varies depending on the circumstances. In some cases, it could be simply by preponderance of the evidence that the testator was not under any undue influence when she revised her will. Under certain circumstances, however, New Jersey courts may impose a higher standard — that of “clear and convincing” evidence. That higher standard is usually applied where an attorney is involved, either as a beneficiary under the suspect will or where in a position of conflict between the proponent and the testator. Estate of Zarillo, 2012 N.J. Super. LEXIS 1960, *59. On the other hand, facts that may assist in rebutting a finding of undue influence include the participation of independent counsel for the testator, a significant period of time between the execution of the revised will and the passing of the testator, or proof that the testator genuinely intended to make greater provision for the proponent of the will.

So, the prudent practitioner, when approached to assist in the revision of a family member’s will, should take adequate precautions to insulate the revised will from an attack of undue influence. Such steps may include referring the testator to separate independent counsel, meeting with the testator outside the presence of other family members, videotaping the interview of the testator in an effort both to corroborate the lack of undue influence and that the change of the will reflects an independent fully informed competent expression of the testator’s wishes, and taking whatever steps are necessary to avoid any appearance of a conflict of interest by the attorney in the representation.

In short, the prudent practitioner would want to ensure that the testator is not operating under the influence of a beneficiary, and is not subject to weakness, dependence or justifiable trust that could result in an unfair advantage in favor of the beneficiary. Moreover, the prudent practitioner should make sure that the person benefitting under the revised will does not overly participate in the preparation of the will, is not present at the execution of the will, and is above board in dealing with the natural objects of the testator’s bounty. See In re Will of Catelli, 361 N.J. Super. 478 (App. Div. 2003). •