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Why the Testamentary Doctrine of Undue Influence Should Be Abolished

64 Pages Posted: 22 Oct 2011 Last revised: 26 Jul 2016

Carla Spivack

Oklahoma City University School of Law

Date Written: April 21, 2010


Many scholars have criticized the doctrine of undue influence in wills, but none so far has called for its abolition. This call is long overdue. Three objections to the doctrine of undue influence -- historical, doctrinal, and psychological – warrant its abandonment.

As a matter of history, courts have shifted the doctrine from the realm of chancery to that of law, in the process unintentionally promoting its distortion and misuse. As a matter of doctrine, "undue influence" fails to meet any standard of clarity, fairness, or predictability that a legal doctrine should satisfy. Finally, as a matter of psychology, undue influence relies on false notions of selfhood and autonomy. These three ways in which the doctrine does not fit the situations to which courts have applied it – the distortions resulting from its transposition from equity to law, the lack of fairness or doctrinal clarity attending its use, and the shaky and questionable psychological foundations on which it rests – have effects that do violence to the goals for which the doctrine supposedly was developed. Rather than protecting testamentary freedom, in reality it is a means to keep inheritance within families, or at least within relationships fitting preconceived social norms. Beyond its failures as a legal doctrine, undue influence also fails to achieve the policy goals often cited to justify its continued existence – mostly protecting the elderly from exploitation. Attempts to soften the effects of the doctrine, such as the Restatement’s inclusion of bequests to unmarried partners and voluntary caregivers among those not presumed to be the result of undue influence, fail to redress the doctrine’s harms.

Keywords: Wills, Trusts and Estates

Suggested Citation

Spivack, Carla, Why the Testamentary Doctrine of Undue Influence Should Be Abolished (April 21, 2010). Kansas Law Review, Vol. 58, No. 2, p. 245, 2010. Available at SSRN:

Carla Spivack (Contact Author)

Oklahoma City University School of Law ( email )

2501 N. Blackwelder
Oklahoma City, OK 73106
United States

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