After centuries of courtroom battles, states breathe new life into undue influence claims

When a person manipulates someone into changing their will, what’s a family member who finds themselves cut out of an inheritance to do?

The answer has played out in courtrooms for hundreds of years and increasingly in statehouse debates as lawmakers seek more options for people who find themselves wrongfully disinherited by another’s undue influence.

Even today, disputes over undue influence often mirror one of the earliest cases on the subject heard by Sir Francis Bacon in 1617.¹ The niece of George Lydiatt, an 80-year-old man “weak of body and understanding,” challenged her uncle’s will after a married woman entered his life and preyed “upon his simplicity and weakness and by her dalliance and pretence of love unto him.” The woman convinced George to write his family out of his will and leave his estate to her. She then neglected him, letting him “lie loathsomely and uncleanly in his bed until three o’clock in the afternoon without anybody to help him.” After George died, Sir Bacon voided the will on grounds of undue influence.

As awareness of elder abuse rises and as younger generations inherit substantial wealth from baby boomers, states are taking steps to further deter undue influence. Some have created new tort remedies, a few allow punitive damages, and others are expanding so-called “slayer statutes” to disinherit people who financially exploit vulnerable adults.

The traditional approach

Undue influence involves a third party—the influencer—using coercion to overcome a person’s free will so that the person substitutes the influencer’s desires for their own in a legal instrument. The influence must be excessive and overpowering to be considered undue. A lesser amount is insufficient. For example, a family member may advise a loved one on estate planning, a friend may urge someone to write a will or make a particular gift, and a person may decide on their own to disinherit a family member shortly before death. Undue influence arises only when:

• A confidential relationship exists between the influencer and the person subject to influence. The influencer is often a family member, friend, caretaker, professional, or new love interest.
• The influencer has access to the person subject to influence and often restricts the person’s access to others.
• The influencer actively participates in shaping the will.
• The will makes unnatural dispositions with inequitable results.

Evidence of some or all the above elements may establish a presumption of undue influence in many states. Then, the burden falls to the will proponent to prove that any influence was not undue. The traditional remedy for someone who finds themselves cut out of an inheritance due to undue influence is to contest the will in probate court. A judge may void a particular gift or the entire will, which would revive an earlier will or cause the estate to be distributed according to state intestacy law.

A new tort emerges

Increasingly, states are creating other remedies to discourage or punish undue influencers and to compensate those wrongfully disinherited. In half the states, a plaintiff can sue a third party for tortious interference with an expected inheritance. This tort claim is different than a will contest. It is a lawsuit against a defendant who engages in wrongful actions similar to undue influence. Unlike in a will contest, a plaintiff who prevails may recover damages and often has more time to bring a claim, making this an attractive option.

This tort remedy gained more attention when Playboy model Anna Nicole Smith litigated a tortious interference claim related to her late husband’s estate all the way to the U.S. Supreme Court in 2006. The Court characterized the tort as “widely recognized” and held that, unlike other probate matters, tortious interference claims are not the exclusive domain of state probate courts and may be brought in federal court if other requirements are also met.²

Recently, however, several states have rejected the tort. For example, South Dakota declined to recognize it in 2019 when a man claimed his mother disinherited him under the wrongful influence of his sister. According to the man, the sister acted as the mother’s caregiver, isolated her from others, and failed to inform him of her death, which he learned about from her attorney a month later when he received a letter stating his mother had disinherited him. The South Dakota Supreme Court ruled that the man could not maintain a suit against his sister, declining to “expand tort liability to the already existing panoply of remedies available to estate litigants in South Dakota.”³ That is a common refrain among states that reject the tortious interference concept—that other options, including traditional will contests, provide adequate relief.

States offer punitive damages as a deterrent

Some states have made punitive damages available to someone who prevails in challenging a will for undue influence. The rationale is to deter future would-be influencers by awarding high damages to punish egregious behavior.

California lawmakers, for example, adopted a 2013 law that makes people who engage in undue influence in bad faith liable for damages at twice the value of the wrongfully taken property. Most undue influence cases since then have settled out of court, according to a 2024 study by law professors David Horton and Reid K. Weisbord.⁴ The professors found the new law is having an impact, as many cases brought under the reforms settled for more money than traditional undue influence claims that did not allege bad faith. New Jersey courts also allow for punitive damages in limited cases where a stranger, not a family member, is the influencer.

Slayer statutes expand to elder abuse

Every state has a “slayer statute,” or an equivalent court-imposed rule, to prevent someone who murders another from inheriting from the estate of the person they killed. At least 10 states have expanded their slayer statutes to disinherit people who financially exploit vulnerable adults. The most recent state to do so is Pennsylvania, which passed a law in 2024 disinheriting people convicted of certain elder abuse crimes. Like Pennsylvania, most states require a criminal conviction related to elder abuse to trigger their expanded slayer statute. In other states, including Montana, Washington, and California, the statute covers people who engage in such exploitation even if no conviction has occurred.

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The landscape surrounding undue influence is complex, changing, and varied across the states. If the 17th century drama in Sir Francis Bacon’s courtroom instead came before an American judge today, George Lydiatt’s niece could have used more tools to go after the woman who manipulated her uncle. Though undue influence is not new, the remedies to address it are still evolving.

^{[1] Joy v. Bannister (Ch. 1617), reported in Reports of Cases Decided by Francis Bacon 33 (John Ritchie ed., 1932).
[2] Marshall v. Marshall, 547 U.S. 293, 312-14 (2006).
[3] Briggs v. Briggs, 931 N.W.2d 510, 511-12, 518 (S.D. 2019).
[4] David Horton & Reid K. Weisbord, The New Undue Influence, 2024 Utah L. Rev. 231, 265-70 (2024).}

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