In an effort to provide a better understanding for what undue influence expert psychologists look for when forming opinions about whether undue influence occurred in the execution of a will, trust, beneficiary designation, or other contractual document, I am highlighting the statutes, case law, and jury instructions specific to all 50 states. Each will be in its own blog post. Eighteenth up, Louisiana.
A donation inter vivos or mortis causa shall be declared null upon proof that it is the product of influence by the done or another person that so impaired the volition of the donor as to substitute the volition of the done or other person for the volition of the donor.
When a donation inter vivos or mortis causa is declared null because of undue influence or because of fraud or duress, it is not necessary that the entire act of donation or testament be nullified. If any provision contained in it is not the product of such means, that provision shall be given effect, unless it is otherwise invalid.
A person who challenges a donation because of fraud, duress, or undue influence, must prove it by clear and convincing evidence. However, if, at the time the donation was made or the testament executed, a relationship of confidence existed between the donor and the wrongdoer and the wrongdoer was not then related to the donor by affinity, consanguinity or adoption, the person who challenges the donation need only prove the fraud, duress, or undue influence by a preponderance of the evidence.
Undue influence can result from physical coercion and duress, or more subtle influences such as creating resentment toward a natural object of a testator’s bounty by false statements (citing In re Succession of Fisher, 06-2493 (La. App. 1 Cir. 9/19/07), 970 So.2d 1048, 1056).
Mere advice, persuasion, or kindness and assistance should not constitute influence that would destroy the free agency of a donor and substitute someone else’s volition for his own (citing Succession of Fisher , 970 So.2d at 1056).
The influence may be exerted by the donee himself or by a third person, even under circumstances where the donee takes no part in the activities and may be unaware of them, as long as some person exercises control over the donor, presumably one who is interested in the fortunes of the donee. (citing Succession of Himel v. Todd , 11–1638, 2012 WL 2921495, p. 4 (La. App. 1 Cir. 7/17/12), writ denied , 12-1878 (La. 11/9/12), 100 So.3d 839).
While the influence must be operative at the time of the execution of the donation or testament, it is not necessary the acts themselves be done at that time, or the person exercising the pressure be present then. (citing Succession of Himel, 2012 WL 2921495 at p. 4).
The elements relied upon by the trial court in the present case, i.e., susceptibility, opportunity, disposition, and coveted results are meaningful and relevant and lead to a reasonable and desired result:
A review of these elements suggests that they are meaningful in a case where property is left to a person when the natural object of a testator’s bounty is passed over in favor of strangers or persons of much lower claims to consideration.
However, in cases where a spouse is the recipient of the testator’s bounty, these elements are almost totally meaningless in determining whether a person might have exerted undue influence.
The proper inquiry as to undue influence on the part of a spouse:
Granting or withholding of love, companionship and intimacy, i.e., the marriage imperatives, are matters reserved to the married couple and shall not, standing alone, serve to invalidate a will.
