Amazing Grace: Religion and Undue Influence

It is no secret that many priests, clergyman, and spiritual advisors, share a deep, committed and trusting relationship with their followers and church congregation. The degree and extent of this trust grows with time, and recent cases I have handled in Florida lead me to conclude that the elderly often share a very special relationship with their spiritual advisors and others who the elderly person views as in a position of religious authority or spiritual leadership. Because the nature of this relationship often equates with what the law defines as a confidential relationship, some legal commentators have recently suggested that the law creates a per se rule raising the presumption of undue influence when an eleventh hour will is executed and religious leaders are active in its procurement, or involved in the will’s preparation and are named as beneficiaries. As Professor Jeffrey G. Sherman recently stated:

“The best solution to this problem of clerical overreaching is to treat all relationships between a testator and her spiritual advisor as per se confidential for purposes of the law of undue influence. Not only would such a solution recognize the enormous power of religious influence and thereby prevent undue leniency in the face of undue influence by mainstream clergyman, it would also guard against the temptation to assess the reasonableness of any religious or spiritual beliefs. The contestant would need to produce evidence only as to the category into which the alleged influencer fell (together with evidence of a “suspicious circumstance”); the inquiry would then turn, with the proponent having the burden of production, to the fundamental–and purely secular–issue of whether the will represented the testator’s own wishes.” 73 BROOKLYN LAW REVIEW 579 (2008). (more…)