THIS ARTICLE IS INTENDED TO SUPPORT THE READER’S AWARENESS AND UNDERSTANDING.  IT IS NOT LEGAL ADVICE.   IF THE READER SEEKS LEGAL ADVICE CONCERNING HIS OR HER PARTICULAR SITUATION, HE OR SHE SHOULD SEEK OUT AN ATTORNEY IN A LAWYER CLIENT RELATIONSHIP.

There is no presumption of  “undue influence”  when a child in a confidential relationship with a parent testator receives a substantial portion of the testator’s property under a Will, and the burden of proving the undue influence is on the one attacking the validity of the Will .  Conduct constituting “undue influence” by a child upon a parent grantor or testator must be unlawful on account of the manner and motive of its exertion, and must be exerted to such a degree as to amount to force or coercion, so that free agency of the testator is destroyed.

In Maryland, concerning an individual attacking a Will on the ground of undue influence, the burden of proving the undue influence is on the one attacking the Will .  Persons can no longer enjoy property after their death; they suffer no loss from a testamentary gift. Testamentary gifts are thus more natural and expected, and the persons most likely to receive them are those who often do stand in a fiduciary or confidential relationship with the donor such as parents, children, spouses, siblings, close friends, trusted employees. See Upman v. Clarke 359 Md. 32 (Md. 2000) .  There is an obvious difference between a gift whereby the donor strips himself of the enjoyment of his property while living and a gift by Will, which takes effect only from the death of the testator. In cases of gifts by Will,  the fact that a party is largely benefited by a Will prepared by himself is nothing more than a suspicious circumstance of more or less weight according to the facts of the case. Upman citing Shearer v. Healey, 247 Md. 11, 25, 230 A.2d101,107-08 (1967) and later in Anderson v. Meadowcroft, 339 Md. 218, 227, 661 A.2d 726,730 (1995), drawing on principles stated in Parfitt v. Lawless, 2 P.&D. 468 (1872), Griffith v. Diffenderffer, 50 Md. 466, 483-84 (1879), and Sellers v. Qualls, 206 Md. 58, 72,110 A.2d 73, 80 (1954

Undue influence conduct which will avoid a Will must be unlawful on account of the manner and motive of its exertion, and must be exerted to such a degree as to amount to force or coercion, so that the free agency of the testator is destroyed. Upman citing  Koppal v. Soules, 189 Md.346,351, 56 A.2d 48, 50 (1947) and Stockslager v. Hartle, 200 Md. 544, 547, 92 A.2d 363,363-64 (1952)  The proof must be satisfactory that the Will was obtained by this coercion or by importunities which could not be resisted, so that the motive for the  execution was tantamount to force or fear. Mere suspicion that a Will has been procured by undue influence, or that a person had the ‘power unduly to overbear the Will of the testator’ is not enough. It must appear that the power was actually exercised, and that its exercise produced the Will.”  The burden of proof is on the caveator ( i.e. person attacking the will to meet these requirements of the law. (citations omitted).   Upman citing Stockslager ,  Knowles v. Binford, 268 Md. 2, 298 A.2d 862 (1973); Moore v. Smith, 321 Md. 347, 582 A.2d 1237 (1990).

In Pennsylvania, conduct constituting undue influence must consist of imprisonment of the body or mind, or fraud, or threats, or misrepresentations, or circumvention, or inordinate flattery, or physical or moral coercion, to such a degree as to prejudice the mind of the testator, to destroy his free agency and to operate as a present restraint upon him in the making of a Will.” In Re: Estate Of : Gladys M. Reed , Deceased Appeal Of: Janet Reed – J. S58010/17 Decided: November 21, 2017