Why the Testamentary Doctrine of Undue Influence Should Be Abolished

Abstract

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 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 inadequacies—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—