On April 1, 2020, the South Carolina Court of Appeals affirmed a lower court’s finding that a mother’s will was invalid as a result of her son’s undue influence. The court’s opinion sheds light on the factors South Carolina courts consider when deciding will contests based on alleged undue influence.

In Gunnells v. Harkness, No. 2017-001131, 2020 WL 1542114 (S.C. Ct. App. Apr. 1, 2020), a daughter (Cathy) claimed that her mother (Helen) changed her will as a result of undue influence exerted by Cathy’s brother and Helen’s son (Glenn). Helen initially had a will in place that left her estate to her three children (Glenn, Cathy, and Belinda) in equal shares. However, in March 2013, Glenn moved in with his parents; in June 2013, Glenn’s father (Helen’s husband) passed away; and in July 2013—which turned out to be seven months before Helen passed away—Helen revised her will to leave her entire estate to Glenn, disinheriting her two daughters, Cathy and Belinda. After a two-day hearing, the probate court found that the July 2013 will was invalid as a result of Glenn’s undue influence over Helen. Interestingly, counsel did not remove the case to the circuit court and demand a jury trial, and instead allowed the probate court to decide the case. Glenn appealed the probate court’s ruling to the Charleston County Circuit Court, which affirmed. Glenn then appealed to the South Carolina Court of Appeals, which also affirmed. 

In affirming the ruling, the court summarized the law of undue influence in South Carolina, listed several facts from the case that weighed against a finding of undue influence, listed several facts from the case that weighed in favor of finding undue influence, and ultimately concluded that there was sufficient evidence to affirm the lower court’s ruling. It is instructive to consider the facts the court identified as weighing in favor of and against finding undue influence. 

Facts Weighing Against Finding Undue Influence

• The lawyer who drafted the new will and the lawyer’s assistant were the only ones present with Helen for the will signing. 
• The lawyer and her assistant testified that Helen seemed like she “knew what she wanted” and was “adamant” about the change to the will, and testified that Helen said the change to her will was more about not wanting to leave anything to her daughters than it was about wanting to leave everything to Glenn. 
• Two of Helen’s physical therapists testified that Glenn took care of Helen and that Helen was angry with her two daughters.  

Facts Weighing in Favor of Finding Undue Influence

• Helen’s new will was significantly different from her prior will and left everything to Glenn, the alleged undue influencer. 
• Helen’s brother and close friend both testified that Helen did not communicate with them as much after Glenn moved in with her and that Helen was reluctant to talk when Glenn was present. 
• Helen’s brother testified that Helen told him that she had to check with Glenn before calling her daughter because Glenn didn’t like Helen to talk to her daughter, and also that Glenn said he didn’t want Helen’s daughters coming over to the house. 
• Glenn installed video cameras in the house. 
• Helen wanted to go visit her sister, but Glenn wouldn’t take her. 
• Helen’s close friend testified that Helen told her that Glenn told Helen that she “had to make a new will” and that Helen said she “executed the new will even though she did not want to.” Helen’s close friend also testified that Helen told her that she “had no choice” and that Helen “clammed up” when Glenn came home during this conversation. Interestingly, Helen’s friend initially testified in her deposition that she never had any conversations with Helen about her will, but she later changed her testimony. 
• Helen’s daughters, Cathy and Belinda, testified that Glenn restricted their mother’s communications with them, including by telling them they couldn’t talk to their mother when they called, threatening to call the police when Belinda came over to the house and tried to see her mother, changing the locks on the house, and telling Cathy that she couldn’t come visit unless Glenn was present.
• When she changed her will, Helen used an attorney recommended by Glenn, and who had previously represented Glenn, and only met with the attorney a single time, which was the day she executed the new will.
• When Helen changed her will, Glenn drove her to the lawyer’s office. 
• Helen met with her primary care doctor, Dr. Chanson, within hours of executing the 2013 Will, and Dr. Chanson testified that Helen was “distraught, visibly upset, and crying over [her husband’s] death during her visit.”
• There was evidence that Glenn failed to give Helen her dementia medicine during the last several months of her life. 

After summarizing this evidence, the court concluded that “the record is replete with evidence to support the overall finding that the 2013 Will was a product of undue influence.” Thus, the court at least implied that this case was not a close call.

In discussing the law, the court held that a person challenging a will on undue influence grounds has the burden of presenting evidence “showing the testatrix’s will was overborne by that of the influencer or someone acting on his behalf”; that this undue influence “must reach a level of force and coercion, not the influence of affection and attachment nor the mere desire of gratifying the wishes of another.” The court also held that “successful will contests asserting undue influence often include evidence of threats, force, restricted visitation, or an existing fiduciary relationship.” Finally, the court recognized two competing legal principles. On the one hand, the court recognized that, for a will to be invalid because of undue influence, “circumstances must unmistakably and convincingly point to the substitution of another's will for that of the testatrix.” On the other hand, the court recognized that “the evidence of undue influence will be mainly circumstantial because undue influence is often exercised behind closed doors, preventing any direct proof.” It is difficult, and perhaps impossible, to reconcile these two principles. 

The court’s ruling is also interesting in other ways. First, the court’s opinion—like all the prior South Carolina court opinions on undue influence—does not create a clear test or bright line rule for determining whether a will is invalid because of undue influence. Although identifying “evidence of threats, force, restricted visitation, and a fiduciary relationship” is a concrete step that courts can take in undue influence cases, it is not clear how a court reliably can determine whether there is unmistakable and convincing evidence of “the substitution of another’s will for that of the testatrix.” In other words, the primary “test” for undue influence under South Carolina law—whether one person’s free will has been overborne by the will of another—is vague and difficult to apply in practice.  This “test” gives courts and juries significant wiggle room to decide whether undue influence was or was not present based on the facts of a particular case.

Second,  the only testimony about Helen’s attitude toward changing her will was from Helen’s friend who said Helen told her that she didn’t want to change her will (after previously testifying that she did not talk to Helen about changing her will), and from the lawyer and her assistant, both of whom said that Helen was “adamant” about changing her will. It would be hard to argue that this evidence, by itself, unmistakably and convincingly proved that Glenn overtook Helen’s decision-making.. However, the court found that this evidence was sufficient when combined with the other relevant facts, most of which related to Glenn interfering with Helen seeing or communicating with her friends and daughters. 

Third, unlike some undue influence opinions, the court did not discuss Helen’s mental competence or other factors that may have affected her susceptibility to undue influence. Thus, one implication of the court’s ruling is that a court does not need to find that the testator had diminished mental capacity or otherwise was “susceptible” to undue influence before invalidating a will on undue influence grounds. 

Last,  the court cited as facts weighing against a finding of undue influence the testimony that Helen was angry with her two daughters, and was motivated to change her will primarily because she did not want to leave assets to her daughters rather than being motivated to leave assets to her son. The court apparently did not consider the possibility – and perhaps counsel did not argue - that Helen’s negative feelings about her two daughters may have been the result of Glenn’s undue influence, including his actions to isolate Helen from her daughters. 

A person who believes a loved one has been—or is being—unduly influenced should find counsel familiar with the legal concepts and the factors courts typically consider in deciding undue influence cases. Likewise, a person who anticipates being accused of undue influence at some point in the future, or who anticipates having his or her estate planning documents challenged on undue influence grounds at some point in the future, should consult with counsel experienced in this area.