Susceptibility To Undue Influence Does Not Equal Incapacity

In probate or guardianship litigation, claims are often made that an elderly parent or family member is incapacitated (or incompetent) and that he or she is susceptible to or the victim of undue influence. Recently, I have been involved in litigation in which the sole claim asserted is that the elderly family member is susceptible to undue influence, and that this susceptibility, in and of itself, equates to incapacity. This claim, however, is contrary to law in New Jersey.

Undue influence is a legal, not a medical term. It is defined by courts in New Jersey as “’mental, moral or physical’ exertion which has destroyed the ‘free agency’” of an individual by preventing him “’from following the dictates of his own mind and will and accepting instead the domination and influence of another.’” Haynes v. First Nat. State Bank of New Jersey, 87 N.J. 163, 176 (1981) (quoting In re Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943)).

Notably, however, the concepts of capacity and undue influence are “separable.” In re Will of Landsman, 319 N.J. Super. 252, 268 (App. Div.), certif. denied, 162 N.J. 127 (1999). Undue influence may exist in cases in which the alleged victim is not incapacitated. Haynes, 87 N.J. at 177; In re Macak, 377 N.J. Super. at 179. An individual may retain legal capacity but still, “because of age or physical condition, be subject to undue influence.” Id.

In fact, our Supreme Court has found that undue influence may be presumed upon the mere finding that a “confidential relationship” exists, even if the elder is “in full possession of his mental and physical faculties” and there is no evidence that the elder’s “mind or will was sufficiently weakened to render him dependent … or servient.” Pascale v. Pascale, 113 N.J. 20, 28, 35 (1988). A “confidential relationship” is easily found, and arises “where trust is reposed by reason of … weakness or dependence or where the parties occup[y] relations in which reliance is naturally inspired or in fact exists.” Haynes, 87 N.J. at 176. In fact, “the relationship of parent and child” is “among the most natural of confidential relationships” that creates a presumption of undue influence. Pascale, 113 N.J. at 34.

Thus, claims of susceptibility to undue influence are easily asserted when a person of advanced years relies upon another for companionship or care. Haynes, 87 N.J. at 176. However, the claim that susceptibility to undue influence, in and of itself, proves that an elderly family member is incompetent is legally unsupportable under New Jersey law and should not be permitted by the courts of our state.