Our firm is often contacted by individuals who anticipated inheriting from a loved one, only to find out, after the loved one passes away, that the loved one executed a will or trust for the benefit of someone who is suspected of having inappropriately abused their relationship of trust and confidence with the loved one in procuring the will.  Such situations invite an “undue influence” analysis.

“[A] person unduly influences a testator or testatrix in executing a will when that person through his power over the mind of the testator or testatrix makes the latter’s desires conform to his own, thereby overmastering the volition of testator or testatrix.” In re McCauley’s Estate, 101 Ariz. 8, 10, 415 P.2d 431, 433 (1966).

In determining whether a contestant has established that a will has been procured through undue influence, certain factors have been treated as significant indicia of the presence or absence of such influence. [citation omitted]. These factors include the following: Whether the alleged influencer has made fraudulent representations to the testatrix; whether the execution of the will was the product of hasty action; whether the execution of the will was concealed from others; whether the person benefited by the will was active in securing its drafting and execution; whether the will as drawn was consistent or inconsistent with prior declarations and plannings of the testatrix; whether the will was reasonable rather than unnatural in view of the testatrix’ circumstances, attitudes, and family; whether the testatrix was a person susceptible to undue influence; and whether the testatrix and the beneficiary have been in a confidential relationship.

 McCauley’s Estate, 101 Ariz. at 10-11, 415 P.2d at 433-34, (emphasis added). “Although none of the enumerated factors standing alone or even in combination with some others, may be sufficient to sustain a finding of undue influence,10 the force of the combination of all these factors may be sufficient to raise a question of fact as to the existence of undue influence.” Id.

Typically, the burden of proving that a will has been procured by undue influence is on the person contesting the will. See Id.  However, the Arizona legislature has enacted a burden-shifting statute which shifts the burden of proof to the proponent of the will if certain factors are met:

  1. The proponent of the will (person in favor of the will) had a confidential relationship to the creator of the will;
  2. The proponent of the will was active in procuring the creation of the will;
  3. The proponent of the will was active in the execution of the will; and
  4. The proponent of the will is a principal beneficiary of the will.


  1. The preparer of the will or the preparer’s spouse or parents or the children of the preparer’s spouse or parents is a principal beneficiary of the will.  (This paragraph does not apply if the will was prepared for a person who is a grandparent of the preparer, the children of a grandparent of the preparer or the respective spouses or former spouses of persons related to the preparer.)

See A.R.S. § 14-2712(E).

However, spouses of a deceased person are likely precluded from the scope of the burden-shifting law. “[T]he marital relationship existing between testatrix and proponent is not one of the confidential relationships giving rise to the presumption of undue influence.” McCauley’s Estate, 101 Ariz. at 11, 415 P.2d at 434.  Accordingly, the burden-shifting statute does not come into play in many cases.  That said, “[a] proponent’s marriage to testatrix does not completely insulate him from a possible finding that he unduly influenced his spouse in executing her will.” Id.  A will can still be found to have been the product of undue influence, but the burden of proof remains with the person contesting the validity of the will.

“Where the contestant has presented evidence from which a reasonable person could conclude that the person charged with exerting undue influence had a disposition to exercise such influence, that he had an opportunity to exercise undue influence, that some influence was exerted, and that the will seems to result from such influence, a question of fact is presented.” Id.

If you have questions about whether a will or trust is the product of undue influence, contact Holland Law Group now to speak with our experienced attorneys about your individual case.