The Lawletter Vol 35 No 4, March 4, 2011
Jim Witt, Senior Attorney, National Legal Research Group
In the context of will contests based on undue influence, courts often include a statement that has become a cliché: "Undue influence is a species of fraud." See, e.g., Adams v. Adams, 742 N.W.2d 399, 403 (Mich. Ct. App. 2007), appeal denied, 745 N.W.2d 761 (Mich. 2008); Cook v. Cook, 396 So. 2d 1037, 1041 (Ala. 1981). At the same time, the following statement can also be found: "Fraud in the procurement of a will is generally considered a species of undue influence." Bolan v. Bolan, 611 So. 2d 1051, 1058 (Ala. 1993). The uncertainty caused by these statements is acknowledged in American Jurisprudence:
Fraud in the procurement of a will is generally considered a species of undue influence, though the two are not exactly synonymous; that is, undue influence may result from a fraud as well as from coercion, the fraud being employed as a means of securing that influence over the testator which compels the testator to the testamentary act. However, some jurisdictions consider a fraud objection to the validity of will as distinct from an undue influence objection, though both are equally destructive of the will; a fraud on a testator willfully deceives the testator's free agency, while undue influence overmasters it.
Whether the claim of invalidity is based on fraud or undue influence, either must amount to coercion, compulsion, or a constraint which destroys the testator's free agency.
Observation: Undue influence and importunity, sufficient to invalidate a will, may be exercised without the existence of fraud; unlike fraud, undue influence need not be attended at all with deception or circumvention.
79 Am. Jur. 2d Wills § 395 ("Relationship to undue influence") (footnotes omitted).
Thus, the relationship between fraud and undue influence in this context seems to be that undue influence is the dominant or underlying element in that, while undue influence can be found in the absence of fraud (as where the undue influence is the result of coercion but not of deception), fraud in procuring a will is a means of exercising undue influence and is therefore part of the overall concept of undue influence. Therefore, the statement that fraud is a species of undue influence appears to be more accurate than the statement that undue influence is a species of fraud.
This view is supported to an extent by the following excerpt from In re Newhall's Estate, 214 P. 231 (Cal. 1923):
Undue influence is not always the equivalent of fraud. One may exist without the presence of the other. The former, however, may at times be exerted and applied through the medium of fraud. Oftentimes the terms "undue influence" and "fraud" are used interchangeably. Thus it has been held that undue influence, even though exercised without the aid of actual fraud or fraudulent representations, is a form of fraud. Estate of Ricks, [117 P. 539 (Cal. 1911)]. It has also been held that undue influence may be exerted no less by fraudulent misrepresentations than by means of duress or other pressure. Estate of Snowball, [107 P. 598 (Cal. 1910)]. Undue influence and fraud as a ground of contest are not, as a matter of law, identical. Theoretically they constitute two separate and distinct grounds of contest. In cases where fraud alone is relied upon as a ground of contest, it is the theory of the law that the testator, even though acting, in a manner of speaking, of his own free will, was nevertheless deceived by false data into doing that which he would not have done had he not been fraudulently imposed upon.
Id. at 234-35.
The court added its belief that false representations, even in the absence of pressure on the testator's mind, can constitute fraud that invalidates the will if it can be shown that the representations were designed to and did deceive the testator, resulting in a will that was different from the one that he or she would have executed had he or she not been misled. Perhaps the best resolution of this question is that, although it can be said that fraud in the procurement of a will is part of the concept of undue influence in that fraud is to be viewed as one means of exercising undue influence, fraud can also be viewed as an independent basis for invalidating a will. It may not be worth trying to reconcile these two views, but at least it can be concluded that the accuracy of the cliché that undue influence is a species of fraud is doubtful.
