Presumptively Disqualified Donees

When someone drafts a will or trust, any gifts they make to themselves, their caregivers, or close relatives are presumed to be influenced by fraud or undue influence. This presumption can be challenged only with strong evidence and can be overcome if an independent attorney reviews the situation and certifies that the transfer was fair.

A lawyer drafts a will that leaves a significant inheritance to her sister, who is also her cohabitant. After the lawyer's death, the will is contested on the grounds of undue influence. The court finds that the lawyer did not provide clear and convincing evidence to rebut the presumption, and the will is deemed invalid.

Gifts to the drafter or their close ones raise red flags for undue influence!

Exams may present scenarios where the donee claims the transfer was voluntary, but students often overlook the presumption of undue influence that applies to these relationships.

Questions typically involve a fact pattern where a drafter leaves assets to themselves or their relatives, prompting students to identify the presumption of disqualification and the burden of proof required to rebut it.