The Journal of The DuPage County Bar Association

Back Issues > Vol. 10 (1997-98)

Undue Influence in Illinois Estates
By Robert E. Jones

As the twentieth century draws to a close we are in the process of experiencing the largest transfer of wealth in the history of the world. Most of the transfer of wealth is taking place through the careful and thoughtful estate planning undertaken by persons who are now in their golden years. However, as the present older generation continues to plan for the orderly transfer of their earthly goods and assets to the next generation there is an increasing incidence of undue influence by the opportunistic few who seek to take advantage of the elderly, the weak and the infirm.

Undue influence is by far the most commonly asserted ground for invalidating a will, a trust instrument or a deed which is part of a person’s post-death estate plan. In cases where a person’s testamentary capacity cannot be successfully challenged it is still possible to allege and prove that the will, trust instrument or deed was procured through the use of undue influence upon the testator or grantor.

The application of the principles of undue influence in moving to set aside such schemes is one way to ensure that the true desires and wishes of those most dear to us are indeed carried out as intended.

Although Illinois Law has long recognized undue influence as a basis for setting aside such documents, both the legal requirements and the operation of Illinois law have proven troublesome to many Illinois practitioners.

In this article we will examine the historical basis for the law of undue influence in Illinois and describe its operation in the practical context of problems often encountered by Illinois attorneys in proving up a case of undue influence.

Historical Development Of The Doctrine Of Undue Influence

The historical development of undue influence as a distinct ground for setting aside a will dates back to the middle of Elizabeth the First’s reign. The doctrine of undue influence was the product of the common law and was first invoked to set aside death bed wills which were prepared by a person importuning the dying man for a legacy. Swinburne, in his 1590 Treatise, discussed the setting aside of wills induced "by fear of bodily harm from another or obtained through fraud on the testator or by flaterie of someone seeking a legacy." Swinburne, a Brief Treatise of Testaments and Last Wills 34-35 London 1590 (Garland ed New York, 1978).

It should be noted that the doctrine of undue influence was not dependent for its development upon statutory or ecclesiastical law as was the doctrine of testamentary capacity.

Rather, the doctrine of undue influence was the product of the common law.

For this reason the early American decisions dealing with undue influence were greatly influenced by the English decisions in this area. One English decision which became particularly important in the development of American law regarding undue influence is the decision of Williams v. Goude, 162 English Rep. 682 (Prerog 1828). In this decision Frances Goude, a self-made man, who had made a fortune operating the King’s Arm’s Tavern in Plymouth, made a will which preferred his wife’s nephews over his only two heirs. In sustaining the will the Court concentrated its analysis of what would constitute undue influence in terms of domination and control.

The English decisions often speak of coercion - whether real or only perceived by the testator.

The American cases, including later Illinois decisions, follow this analysis and often mention some type of coercion or domination as would destroy the testator’s free agency as the basis for canceling a will or a deed. Sturtevant v. Sturtevant, 116 Ill. 340 (1886); Dickie, et al. v. Carter, 42 Ill. 379 (1866).

Following the lead of the English decisions Illinois, like most American jurisdictions, has adopted a definition of undue influence which states that undue influence is some type of coercive conduct aimed at destroying the testator’s free agency and substituting in its stead the will of another. Redmond v. Steele, 5 Ill. 2d 602, 126 N.E. 2d 619 (1955); Swenson v. Wintercorn, 92 Ill. App. 2d 88, 234 N.E. 2d 91 (2nd Dist. 1968).

In the Swenson decision the Appellate Court for the Second District defined undue influence which will invalidate a will or other instrument as follows: "The influence must be specifically directed towards procuring the will in favor of a particular party or parties and must be such as to destroy the testator’s will and render the instrument more the will of another or others than that of the person executing the documents." id. at page 96, 97.

Thus, the historical basis for the doctrine of undue influence in Illinois rests upon the activities of a dominant party in either overpowering or inducing another to do something which that person would not do without such influence. This influence seldom rises to the level of physical duress or coercion. The usual case of undue influence involves subtle means ranging from flattery to attempts to encourage fear, isolation or loneliness on the part of the testator.

Illinois Requirements To Prove A Prima Facie Case Of Undue Influence

To provide an accurate and universal definition of what constitutes undue influence has proven difficult, if not impossible. Our Supreme Court made the following observation in this regard:

"What constitutes undue influence cannot be defined by fixed words and will depend upon the circumstances of each case." Estate of Hoover, 155 Ill. 2d 402, 615 N.E. 2d 736, 185 Ill. Dec. 866 (Supreme Court 1993).

However, the Court did go on to say: "As this Court has previously stated, undue influence which will invalidate a will is "any improper...urgency or persuasion whereby the will of a person is overpowered and he is induced to do or forebear an act which he would not do or would do if left to act freely." Id. at 740.

The Supreme Court in Hoover also noted that the evidence of undue influence may be wholly inferential and circumstantial. In pursuing cases of undue influence trial attorneys are often frustrated by the constraints of the Dead-Man’s Act. It is for this reason that the use of such purely inferential and circumstantial evidence has often proved a necessity. The Court in Hoover also observed that the influence may be that of a beneficiary or that of a third person which will be imputed to the beneficiary. Id. at 740. In many cases where the defendant has used third parties to carry out the scheme there may be little direct and admissible evidence available to the trial attorney seeking to prove undue influence. It is in such cases that the use of purely circumstantial evidence and the imputing of the underlying acts to the defendant may prove a potent weapon in the hands of an experienced trial attorney.

To set aside a will or other document the undue influence must be directly connected with the act of execution of the document and must operate at the time of the execution. Schmidt v. Schwear, 98 Ill. App. 3d 336, 424 N.E. 2d 401, 53 Ill. Dec. 766 (5th Dist 1981). However, the fact that the defendant/beneficiary was not present at the actual signing of the document is not controlling, particularly where the will or trust document was prepared at the defendant/beneficiary’s insistence or urging. Sulzberger v. Sulzberger, 372 Ill. 240, 23 N.E. 2d 46 (Supreme Court, 1939). In determining whether the conduct was the product of undue influence, old age and disability is a material circumstance which may be considered on the issue of undue influence. Schmidt v. Schwear, op cit. And, the evidence of a mental condition of the testator at a reasonable time before or after the making of a will may be received when it tends to show a mental condition at the time of the execution of the instrument. A mental condition shown to exist is presumed to continue and to be of a continuance nature. Butler v. O’Brien, 8 Ill. 2d 203. The analysis centers on the relationship of the parties: where one party is clearly dominant, either physically or mentally, the courts are more likely to set aside the documents.

In Illinois, the law states that certain facts will give rise to a rebuttable presumption of undue influence. To raise this presumption, the plaintiff must establish four elements: 1. A fiduciary relationship between the testator and a person who receives a substantial benefit under the will; 2. A testator in a dependent situation in which the substantial beneficiaries were in dominant roles; 3. A testator who reposed trust and confidence in such beneficiaries;

4. A will prepared or procured and executed in circumstances wherein such beneficiaries participated.

Estate of Ciesiolkiewicz, 243 Ill. App. 3d 506, 611 N.E. 2d 1278, 183 Ill. Dec. 630 (1st Dist 1993); Swenson v. Wintercorn, op cit.

Proof of these facts establishes prima facie the charge that the execution of the will or trust document was the result of undue influence exercised by the beneficiaries.

Once the presumption of undue influence is established it has the effect of shifting to the party against whom it operates the burden of going forward and introducing evidence to meet the presumption.

Determining exactly what evidence will be sufficient to rebut the presumption is done on a case by case basis. If sufficient evidence is presented to rebut the presumption then the presumption will cease to exist.

Although the burden of proof or burden of persuasion remains with the proponent attempting to establish undue influence, the one against whom the charge of undue influence is made and against whom the presumption operates must produce substantial evidence in order to prevail. Nemeth v. Banhalmi, 125 Ill. App. 3d 938, 466 N.E. 2d 977 (1987). And, the feebler the mind of the testator, when a will was executed, the less evidence is required to invalidate the will on the ground of undue influence Sulzberger v. Sulzberger op cit. It is at this point that the trier of fact "must weigh the evidence and consider any and all reasonable inference that can be drawn from those facts, including the possible inference of undue influence." Nemeth, op cit at 993.

It should be noted that a fiduciary relationship is established in the undue influence context where there is a special confidence reposed in one who, by reason of such confidence, must act in good faith and with due regard to the interests of the person reposing that special confidence. This relationship may exist as a matter of law between attorney-client, guardian-ward, principal-agent or as a power of attorney, or it may be a result of a more informal relationship which is either moral, social, domestic or even personal in origin. Estate of Ciesiolkiewicz, op cit. There must be some factual basis from which a reasonable inference may be drawn that a special relationship existed Wiszowaty v. Baumgard, 257 Ill. App. 3d 812, 629 N.E., 2d 624 (1st Dist 1994); Herbolsheimer v. Herbolsheimer, 60 Ill 2d 574, 328 N.E. 2d 529 (1975).

The remaining three elements required to state a prima facie case of undue influence and thereby raise the presumption in favor of the proponent will not be discussed in detail here, as the cases already cited adequately discuss these aspects. However, mention should be made of the fact that Illinois has recognized "secret influences" as a basis to support a finding of undue influence. In these cases the plaintiffs may introduce circumstantial evidence that false or misleading representations concerning the character of another were connected with the execution of a will and that this influence was in effect and operative at the time of the execution of the will or estate document. Estate of Hoover, 155 Ill. 2d 402, 615 N.E. 2d 736, 185 Ill. Dec. 866 (Supreme Court 1993). For example, in the Hoover case, the plaintiffs alleged that the testator’s will was overborne by a series of misrepresentations about the character of the testator’s son while going through a divorce. The Supreme Court held that "secret influences" in this setting may be sufficient to sustain a finding of undue influence and thereby set aside the testamentary document.

Pleading Requirements In The Undue Influence Case

It is not sufficient to plead undue influence as a conclusion, but facts must be alleged warranting the conclusions. Merrick v. Continental Bank, 10 Ill. App. 3d 97, 293 N.E. 2d 767, (1973). The fact that a complaint is unduly repetitious or verbose will not operate to destroy its sufficiently if there are sufficient allegations to state a cause of action on grounds of undue influence. Estate of Lipchik, 27 Ill. App. 3d 331, 326 N.E. 2d 464 (1975). On the basis of this decision practitioners should err on the side of including everything in the complaint rather than suffering the potentially disastrous consequences of a motion to dismiss or a summary judgment.

The decision of Estate of Osborn, 128 Ill. App. 3d 453, 470 N.E. 2d 1114, 83 Ill. Dec. 694 (1984) is illustrative of the pleading requirements in undue influence cases. In this case the decedent’s sister brought an action to contest the decedent’s will alleging undue influence on the part of the Catholic Diocese of Belleville. The plaintiff listed the many contacts and acts of kindness by members of the clergy and other "agents" of the Diocese of Belleville and noted the increasing dependency of the decedent on these persons. Plaintiff alleged that the Diocese was clearly in a dominant position and that its agents had induced the decedent to change the will to the benefit of the Diocese and to disinherit the family. However, the plaintiff failed to say precisely how this undue influence was accomplished. In holding that the petition was insufficient to charge undue influence the Court stated:

"It is well settled that, in a will contest action, it is not sufficient to allege merely a conclusion that a party exercised undue influence over the decedent. Rather, facts must be stated in the complaint which, if proved, would warrant such a conclusion." Id. at 1116.

The general rule in Illinois is that the pleading of undue influence must contain a very specific recital of the manner in which the free will of the testator was impaired at the time the instrument was executed. Failure to precisely state how the undue influence overpowered the decedent’s will may result in a dismissal with prejudice even at the pleading stage of the proceedings.


The doctrine of undue influence is a product of the common law and has long been grafted into case decisions in America. In Illinois, case authority has evolved to allow the trial attorney to use this powerful doctrine to undue the schemes and plans of those who would take advantage of the weak and elderly. The gravamen of the action is that of domination or control exercised for the benefit of the financial advantage of the defendant. Although Illinois case decisions have stated the elements required to prove undue influence in many case decisions, a precise definition of undue influence is difficult. Rather, the courts proceed on a case by case basis to determine what is and what is not undue influence given a particular fact scenario. The key to the analysis is the relationship of the parties. The courts are much more likely to find undue influence where one party is stronger than the other and where a fiduciary relationship clearly exists as a matter of law or fact.

The trial practitioner who can marshal facts sufficient to raise the presumption of a prima facie case enjoys a distinct advantage in litigating these cases. For, once the presumption is raised, it is sometimes difficult or impossible for the opponent of the presumption to present sufficient evidence to overcome the presumption.

As more and more people employ various trust documents and more sophisticated estate planning devices, more cases of undue influence will be brought outside the will contest forum. The strict execution requirements and procedures applicable to the creation of an enforceable will are not required in the execution of trust documents. And, since trust documents are not subject to probate and the scrutiny required by the Probate Act, we can anticipate more and more undue influence being perpetrated in the creation and altering of trust documents.

Robert E. Jones
is a principal of Greene, Jones & Brisske, P.C., Wheaton. His practice is concentrated in Civil Litigation with an emphasis in Personal Injury, Estate Contests and Business Disputes. Mr. Jones has chaired numerous committees for the DCBA and is currently serving as a member of the Board of Directors. He received his Undergraduate Degree from Wheaton College in 1971 and his Law Degree from Vanderbilt University in 1974.

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