“[T]here are no instances where men are so easily imposed upon as at the time of their dying, under pretense of charity . . .” 73 Brook. L. Rev. 579. Thus begins Jeffrey G. Sherman’s law review article titled “Can Religious Influence Ever be Undue Influence.” The article continues “[t]he Lord Chancellor’s quoted remark about charity and deathbed susceptibility reflects our law’s longstanding uneasiness with eleventh-hour charitable bequests and our courts’ struggle to differentiate between a testator’s own independent charitable impulses and those imposed on her by an outsider playing upon her fears or weakness.”

The Wills, Trusts, & Estates Prof points out that such fears and suspicion led states to pass mortmain statutes. Mortmain statutes basically held that if a gift was made to a religious organization within 6 months of a person’s death, the gift made to the organization was ruled invalid. The drafters imagined situations where the threat of eternal damnation was held over the head of a dying testator - without the cleansing gift of money to the church. But these statutes tended to invalidate proper gifts made by will and trusts to churches – such as those made by irrevocable charitable remainder trusts. The statutes were thus unwieldy, and the legislatures of all fifty states eventually scrapped the statutes in favor of a judicial determination of undue influence.

Undue influence in California is contained in California Civil Code Section 1575, and is the use of confidence or authority for the purpose of obtaining an unfair advantage; or taking an unfair advantage of another’s weakness of mind; or taking a grossly oppressive and unfair advantage of another’s necessities or distress. This statute gives the same protection of the mortmain statutes of old, but also gives added flexibility to estate lawyers so that individuals may make charitable donations to religious organizations without fear of an invalid gift by will or trust.

Filed under: Uncategorized, Will Contests