Sunday, October 1, 2017

Varying standards for undue influence

Enjoying some academic pursuits during a weekend sandwiched between court appearances ....  From the summary of substantive committee meetings for the upcoming ACTEC Fall 2017 conference:

States’ Varied Approaches to the Presumption of Undue Influence: With regard to undue influence, Oklahoma generally follows the approach now outlined in 2 Restatement (Third) of Property – Wills and Other Donative Transfers § 8.3 cmts. e-h (2003). This approach includes the presumption of undue influence upon a finding of (i) active assistance in securing the testamentary instrument by (ii) a per-son in a close and confidential relationship with the testator. Id. cmt. f. See also Blair v. Richardson, 2016 OK 96, 381 P.3d 717 (setting forth the Oklahoma Supreme Court’s most recent reiteration of the elements needed for the presumption of undue influence). In 2015, Oklahoma trust and estate litigators collectively held their breath after introduction of House Bill 1149, which would have (i) eliminated burden-shifting on issues of the validity of testamentary instruments and (ii) mandated strict en-forcement of in-terrorem clauses. The proposal was largely gutted by amendment as it made its way through the legislature, and was eventually vetoed by the governor. This turn of events gives rise the question that James C. Milton will address in this presentation: Whether and to what extent other states depart from the presumption of undue influence through legislation or common law.