Undue Influence and the Law of Wills: A Comparative Analysis
Scalise, Ronald J., Jr., Duke Journal of Comparative & International Law
"A son can bear with equanimity the loss of his father, but the loss of his inheritance may drive him to despair." (1) Indeed, even the prospect of a loss of inheritance often drives sons, daughters, relatives, and friends to desperate measures. Consider the following scenario: Bob, prior to his death at the age of 90, was a bachelor with substantial wealth. He was survived only by his great-niece, Angela, and by his friend, Smith. Angela had only sporadic contact with her uncle, which was a source of tension and anger for him. Five years before Bob's death, Smith began taking care of him and assisting him on a daily basis with meals, transportation, and hygiene. Smith also helped Bob with his financial affairs including taking him to an attorney to draft a will. Smith encouraged Bob to disinherit his thankless niece and leave his money to the people who cared about him. After Bob's death, his will was read, and the entirety of Bob's fortune was left to Smith. Angela contests the probate of the will by alleging that it was the product of undue influence exercised by Smith.
The above scenario, in one form or another, is a very common one. In deciding how to dispose of his property, a testator, especially an elderly one, is subject to a number of influences, some of which may be "undue." In light of the advancing age of the population and "the high prevalence of cognitive impairment and dementia in older adults," the number of contested wills seems only to be increasing. (2) In fact, statistical evidence shows that in American law, "the predominant weapon for attempting to undo a will is an allegation of undue influence." (3)
Perhaps because of the frequency with which undue influence is alleged to exist, the concept of "undue influence" has been correctly characterized as "one of the most bothersome concepts" in American law. (4) But the situations addressed by the concept of undue influence are not unique to American law. All societies that recognize freedom of testation face problems with self-interested individuals inappropriately influencing testators to make otherwise unintended dispositions. In fact, in early Roman times, where will making was quite common, (5) the civil law faced problems with undue influence in the realm of wills. (6) Surprisingly, though, neither modern French nor modern German law contains a concept of undue influence at all. This absence is not because of a cultural immunity that prevents civil law jurisdictions from facing the above problem. Instead, the absence of undue influence in French and German law can be explained by a number of legal institutions and concepts that are the "functional equivalent" of undue influence. In other words, the civil law generally, and French and German law in particular, possesses legal institutions that serve similar--although not identical--functions and purposes as undue influence in American law. (7)
This article discusses comparatively the doctrine of undue influence in the making of wills. Although comparative scholarship flourishes in the areas of tort and contract law, hardly any comparative work exists in the area of succession. (8) Indeed while other areas of private law have been studied for purposes of unification, "the unification or even harmonisation of succession law is not on the agenda of any law-making body." (9) In that regard, this article attempts to fill the gap in comparative private law. Part I surveys the history of undue influence from Roman times to the modern day. Part II examines the concept and role of undue influence in American law and the problems that exist with the doctrine. Part III considers the functionally equivalent doctrines that exist in French and German law. Part IV provides comparative insights and lessons.
I. THE HISTORY OF UNDUE INFLUENCE
The concept of undue influence in American law is a notoriously difficult one, and any attempt to define undue influence often degenerates into nothing more than platitudes about "substituting one's volition for another" and generalities concerning whether a testator is "susceptible" to a kind of influence considered "undue" by the law. …