There are times when a will contest action will be filed challenging the will admitted to probate and seeking to set aside the will. Missouri’s will contest statute, Section 473.083 RSMO, has as its sole purpose to determine whether the will in question is the valid last will of the testator. There are many reasons to file a will contest, which include but are not limited to, lack of capacity, improper execution, fraud, forgery, mistake, duress, insane delusion and undue influence. Many times undue influence will be alleged as the reason for attempting to set aside the will.

Undue influence has been described in Missouri as influence of such force, coercion, or over-persuasion as to destroy the free agency and determination of the testator. MAI 15.03 defines undue influence as the influence to destroy the free choice of the person making the will. These definitions have in common the actions of a third party resulting in an unwilling testator executing a will as directed by the influence exerted by the third party. Undue influence is usually proved through circumstantial evidence. What constitutes undue influence is typically dependent upon the mental stability and independence of the testator. What could be undue influence in one case might not be undue influence in another case.

In Missouri, a presumption of undue influence arises upon a showing of all of the following: a confidential or fiduciary relationship existed between the testator and the beneficiary; the beneficiary received a substantial bequest by the will; and finally, the beneficiary was active in procuring the execution of the will. Attorneys in Missouri will typically include an allegation of undue influence in a will contest action because when all three of these prongs are satisfied a prima facie case of undue influence has arisen and then the case goes to the jury, regardless of any rebuttal testimony. In other words, the attorney who has met the requirements of the presumption of undue influence is assured of having his case heard by the jury. Consequently, the allegation of undue influence is frequently alleged in will contest actions.