M Civ JI 170.44 Will Contests: Undue Influence - Definition; Burden of Proof

The contestant has the burden of proving that there was undue influence exerted on the decedent in the making of the will.

Undue influence is influence which is so great that it overpowers the decedent’s free will and prevents [him / her] from doing as [he / she] pleases with [ his / her ] property.

To be “undue,” the influence exerted upon the decedent must be of such a degree that it overpowered the decedent's free choice and caused [ him / her ] to act against [ his / her] own free will and to act in accordance with the will of the [ person / persons ] who influenced [ him / her ].

The influence exerted may be by [force / threats / flattery / persuasion / fraud / misrepresentation / physical coercion / moral coercion / ( other) ]. A will which results from undue influence is a will which the decedent would not otherwise have made. It disposes of the decedent’s property in a manner different from the disposition the decedent would have made had [ he / she ] been free of such influence.

The word “undue” must be emphasized, because the decedent may be influenced in the disposition of [ his / her ] property by specific and direct influences without such influences becoming undue. This is true even though the will would not have been made but for such influence. It is not improper for a [ spouse / child / parent / relative / friend / housekeeper / (other) ] to—

(a) *([ advise / persuade / argue / flatter / solicit / entreat / implore ],)

(b) (appeal to the decedent’s [ hopes / fears / prejudices / sense of justice / sense of duty / sense of gratitude / sense of pity ],)

(c) *(appeal to ties of [ friendship / affection / kinship ],)

(d) *([ (other) ],)

provided the decedent's power to resist such influence is not overcome and [ his / her ] capacity to finally act in accordance with [ his / her] own free will is not overpowered. A will which results must be the free will and purpose of the decedent and not that of [ another person / other persons ].

Mere existence of the opportunity, motive or even the ability to control the free will of the decedent is not sufficient to establish that the decedent's will is the result of undue influence.

If you find that [ name ] exerted undue influence, then your verdict will be against the will. If you find that [ name ] did not exert undue influence, then your verdict will be in favor of the will.

Note on Use

*The Court should choose among subsections (a)-(d) those which are applicable to the case.

This instruction should be accompanied by M Civ JI 8.01, Meaning of Burden of Proof.

Comment

In re Estate of Karmey, 468 Mich 68; 658 NW2d 796 (2003); Widmayer v Leonard, 422 Mich 280; 373 NW2d 538 (1985); Kar v Hogan, 399 Mich 529; 251 NW2d 77 (1976); In re Willey Estate, 9 Mich App 245; 156 NW2d 631 (1967); In re Langlois Estate, 361 Mich 646; 106 NW2d 132 (1960); In re Paquin’s Estate, 328 Mich 293; 43 NW2d 858 (1950); In re Balk’s Estate, 298 Mich 303; 298 NW 779 (1941); In re Kramer’s Estate, 324 Mich 626; 37 NW2d 564 (1949); In re Reed’s Estate, 273 Mich 334; 263 NW 76 (1935); In re Curtis Estate, 197 Mich 473; 163 NW 944 (1917); Nelson v Wiggins, 172 Mich 191; 137 NW 623 (1912).

History

M Civ JI 170.44 was added January 1984. Amended December 2003; October 2014, January 2020.​