Undue Influence and the Law of Wills: A Comparative Analysis
2008; Oxford University Press; Volume: 19; Issue: 1 Linguagem: Inglês
ISSN
1053-6736
Autores Tópico(s)Legal principles and applications
ResumoINTRODUCTION A son can bear with equanimity loss of his father, but loss of his inheritance may drive him to despair. (1) Indeed, even prospect of a loss of inheritance often drives sons, daughters, relatives, and friends to desperate measures. Consider following scenario: Bob, prior to his death at age of 90, was a bachelor with substantial wealth. He was survived only by his great-niece, Angela, and by his friend, Smith. Angela had only sporadic contact with her uncle, which was a source of tension and anger for him. Five years before Bob's death, Smith began taking care of him and assisting him on a daily basis with meals, transportation, and hygiene. Smith also helped Bob with his financial affairs including taking him to an attorney to draft a will. Smith encouraged Bob to disinherit his thankless niece and leave his money to people who cared about him. After Bob's death, his will was read, and entirety of Bob's fortune was left to Smith. Angela contests probate of will by alleging that it was product of exercised by Smith. The above scenario, in form or another, is a very common one. In deciding how to dispose of his property, a testator, especially an elderly one, is subject to a number of influences, some of which may be undue. In light of advancing age of population and the high prevalence of cognitive impairment and dementia in older adults, number of contested wills seems only to be increasing. (2) In fact, statistical evidence shows that in American law, the predominant weapon for attempting to undo a will is an allegation of (3) Perhaps because of frequency with which is alleged to exist, concept of influence has been correctly characterized as one of most bothersome in American law. (4) But situations addressed by concept of are not unique to American law. All societies that recognize freedom of testation face problems with self-interested individuals inappropriately influencing testators to make otherwise unintended dispositions. In fact, in early Roman times, where will making was quite common, (5) civil law faced problems with in realm of wills. (6) Surprisingly, though, neither modern French nor modern German law contains a concept of at all. This absence is not because of a cultural immunity that prevents civil law jurisdictions from facing above problem. Instead, absence of in French and German law can be explained by a number of legal institutions and concepts that are functional of influence. In other words, civil law generally, and French and German law in particular, possesses legal institutions that serve similar--although not identical--functions and purposes as in American law. (7) This article discusses comparatively doctrine of in making of wills. Although comparative scholarship flourishes in areas of tort and contract law, hardly any comparative work exists in area of succession. (8) Indeed while other areas of private law have been studied for purposes of unification, the unification or even harmonisation of succession law is not on agenda of any law-making body. (9) In that regard, this article attempts to fill gap in comparative private law. Part I surveys history of from Roman times to modern day. Part II examines concept and role of in American law and problems that exist with doctrine. Part III considers functionally equivalent doctrines that exist in French and German law. Part IV provides comparative insights and lessons. I. THE HISTORY OF UNDUE INFLUENCE The concept of in American law is a notoriously difficult one, and any attempt to define often degenerates into nothing more than platitudes about substituting one's volition for another and generalities concerning whether a testator is susceptible to a kind of considered undue by law. …
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