The Oklahoma Bar Journal December 2022

influence over the testatrix, 3) the influencer had a disposition to exert influence of a nature that would cause the testatrix to make a provision contrary to her own desires and 4) the resulting dis position appears to have been the product of the undue influence. 21 These four elements, often referred to in clinical contexts as “SODR fac tors” ( S usceptibility O pportunity D isposition R esult), are not neces sarily determinative but provide the trier of fact with objective indi cia to guide their analysis. 22 On the other hand, a rebuttable presumption of undue influence will arise where 1) a “confidential relationship” existed between the testatrix and another, stronger party and 2) the stronger party “actively assisted” in the pro curement of the will. 23 Once this presumption is raised, the burden

that a client must lack capacity or suffer from cognitive defects to be unduly influenced. While it may be easier to exert undue influence over an incapacitated person, 11 the two concepts are independent. 12 A competent person is still vulnerable to this kind of manipulation. 13 In fact, “People with general capacity to do business or deal with com plex situations are taken advantage of with great frequency.” 14 Undue influence developed in the common law to protect against “overreaching by a wrongdoer seeking to take unfair advantage of a donor who is susceptible to such wrongdoing.” 15 It has often been defined as that degree of influence “which destroys the testatrix’s free agency,” 16 effec tively “substitut[ing] another’s will for that of the testatrix’s” 17 and causing her to make a donative

transfer she would not otherwise have made. 18 Although these defi nitions are useful to describe the conceptual space undue influence occupies in the broader framework of the law, they don’t tell us much of practical use, and they fall well short of reflecting what science has come to understand about human decision-making. 19 Because direct evidence of undue influence is rarely available, courts have long utilized a system of inferences and burden-shifting presumptions to aid them in assessing claims. 20 Circumstantial evidence is generally sufficient to raise an inference – something the judge or jury is allowed but not required to rely on as fact – of undue influence, where 1) the testatrix was susceptible to the influence of others, 2) the influencer had the opportunity or ability to exert

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THE OKLAHOMA BAR JOURNAL