Undue influence is a type of fraud perpetrated by someone who overpowers the will of, and
influences a testator. Flanigon v. Smith, 337 Ill. 572 (1929). Undue influence is any act that
causes the testator to act differently regarding the will than he or she would have acted but for
the influence. Powell v. Bechtel, 340 Ill. 330 (1930). The testator’s free will concerning the
disposition of his or her estate is destroyed, the testator’s purpose is altered, and the will is
rendered more the will of the influencer than of the decedent. Undue influence must be directly
connected with the execution of will and operate at the time the will is made. Flanigon, supra;
Franciscan Sisters Health Care Corp. v. Dean, 95 Ill.2d 452 (1983).
Acts of undue influence can be outright threat, deprivation of daily necessities, excessive
kindness or attention, or isolated devotion. Illinois courts seem to be evenly divided between
holding that such “affection” is improper (see, e.g., Kelley v. First State Bank of Princeton, 81 Ill.
App. 3d 402 (3d Dist. 1980) and those that hold that it is not (see, e.g., Swenson v. Wintercorn,
92 Ill. App. 2d 88 (2d Dist 1968).
Undue influence also requires some evidence of the decedent’s diminished mental capacity
since a fully competent and independent adult can presumably resist the improper influence. A
person who must rely on others or is exposed and at risk presumably cannot. See Sulzberger v.
Sulzberger, 372 Ill. 240 (1939).
When an individual was in a fiduciary or confidential relationship with the testator, undue
influence is presumed and must be rebutted by the influencer by clear and convincing
evidence. Belfield v. Coop, 8 Ill.2d 293 (1956). “Fiduciary or confidential relationship” can mean
anything from an express fiduciary relationship, such as attorney-client, trustee-beneficiary, or
attorney in fact for principal under a power of attorney, to informal relationships that are
determined to exist from the facts. The factors that can give rise to an informal fiduciary or
confidential relationship often involve a testator who is dependent or places reliance on the
dominant party in the relationship, when there is trust given to the person exercising influence.
This is often because the person provides for or cares for the testator or because the person is
more sophisticated, more robust, or more qualified for reposing trust than the subordinate
party, the testator. Schmidt v. Schwear, 98 Ill. App.3d 336 (5th Dist. 1981). These persons will
often be a trusted family member, the son or daughter providing for care or handling business
transactions, or a caregiver on whom the testator must rely for day-to-day necessities such as
food and shelter. See Pepe v. Caputo, 408 Ill. 32 (1951). The relationship has often been
described as one that can be moral, social, domestic, or even personal in its creation. In re
Estate of Roeseler, 287 Ill. App. 3d 1003 (1st Dist 1997).
To raise a presumption of undue, the party asserting it must establish:
(1) a fiduciary relationship between the testator and a person who receives a substantial Roeseler.
benefit under the will;
(2) a testator in a dependent situation in which the substantial beneficiaries were in
(3) a testator who reposed trust and confidence in such beneficiaries; and
(4) a will prepared or procured and executed in circumstances wherein such beneficiaries
were instrumental or participated.
Undue influence has been established when a beneficiary was the son of an attorney who
prepared a will. Zachary v. Mills, 277 Ill. App. 3d 601 (1996). A beneficiary giving notes to an
attorney preparing a will gives rise to undue influence. Tidholm v. Tidholm, 391 Ill. 19 (1945).
The actions of third persons may also give rise to a presumption of undue influence and may be
imputed to the beneficiary. Swensen v. Wintercorn, , 92 Ill. App. 2d 88 (1968).
What constitutes undue influence cannot be defined by fixed words and will depend Roeseler at 1019.
upon the circumstances of each case. [Citation.] Proof of undue influence may be wholly
inferential and circumstantial. [Citation.] The inference may be that of a beneficiary or
that of a third person which will be imputed to the beneficiary. [Citation.]
Medical and hospital records are generally admissible to show capacity and, effective August 1,
1992, are admissible into evidence under the “business records” hearsay exception without the
necessity of authentication through proper foundation testimony under Illinois Supreme Court
Rule 236. The opinion of a layperson regarding the decedent’s capacity is admissible generally.
Roeseler, 287 Ill. App. 3d 1003 (1st Dist 1997). Proper foundation must be given as a basis for
the testimony, usually limited to observation by the witness on occasions immediately proximate
to the execution of the will. Id.; Mitchell v. Van Scoyk, 1 Ill2d 160 (1953). Everyday
acquaintances of the decedent can testify about any observation of the decent that might tend
to prove or disprove capacity at the time the will was executed. Ergang v. Anderson, 378 Ill. 312
In Belfield v. Coop, 8 Ill.2d 293 (1956) and Swenson v. Wintercorn, 92 Ill.App.2d 88 (2d Dist.
1968), it was stated that when there is sufficient pleading and proof to show a fiduciary
confidential relationship, when the devisee is the dominant party and the testator is dependent,
and the will is procured by and in favor of the fiduciary through the use of the fiduciary
confidential relationship, a presumption of undue influence will arise. Once the presumption
arises, the burden shifts to the fiduciary or person in a confidential relationship to offer
evidence that is clear and convincing and rebuts the presumption. Franciscan Sisters Health
Care corp. v. Dean, 95 Ill.2d 452 (1983). Failure to do so would result in a jury instruction in
favor of the opponent of the will and a verdict of undue influence.