Setting aside a will because it was a product of undue influence on the testator rests on the premise that the undue influence is to such a degree that the testator is robbed of his or her free agency:
“Undue influence has also been a much litigated question. To warrant a finding that it invalidates a will, it must be shown that there existed ‘that degree of importunity which deprives a testator of his free agency, which is such as he is too weak to resist, and will render the instrument not his free and unconstrained act’.”
Sellers, 206 Md. at 70 (citation omitted). There is no bright line test to determine existence of undue influence. Certain factors, however, have been found by the Maryland Court of Appeals as “characteristics” of undue influence:
1.         “The benefactor and the beneficiary are involved in a relationship of confidence and trust; 2.         The will contains substantial benefit to the beneficiary; 3.         The beneficiary caused or assisted in effecting execution of the will; 4.         There was an opportunity to exercise influence; 5.         The will contains an unnatural disposition; 6.         The bequests constitute a change from a former will; and 7.         The testator was highly susceptible to the undue influence.”
Moore v. Smith, 321 Md. 347, 353, 582 A.2d 1237 (1990). As mentioned, the “relationship of confidence and trust” is one piece of evidence to establish undue influence in a will contest. The rule for an inter vivos gift, on the other hand, is that the existence of a confidential relationship shifts the burden of proof to the donee of the gift: “In some relationships, such as attorney-client or trustee-beneficiary, a confidential relationship is, indeed, presumed as a matter of law. Otherwise, and particularly in family relationships, such as parent-child and husband-wife, the existence of a confidential relationship is an issue of fact and not to be presumed as a matter of law.” Upman, 359 Md. at 42. Upman v. Clarke involved a revocable trust which had the decedent as initial trustee and the Clarkes as successor trustees and remaindermen. The issue was whether the creation of the revocable trust was inter vivos or testamentary. The court held that, when resolving issues of undue influence and the revocable trust, one should follow the testamentary rules rather than inter vivos rules where the donees had not disposed of any of the assets of the trust to themselves or exercised substantial control over those assets to the detriment to the grantor of the trust: “Whether an instrument of this kind [where assets were used for the benefit of someone other than the grantor] is to be regarded as testamentary or inter vivos may depend on how it is, in fact, implemented.” Id. at 48. In Figgins v. Cochrane, 403 Md. 392, 942 A.2d 736 (2008), the Court held that a gratuitous transfer to the agent under a durable power of attorney was the result of undue influence. In that case, the agent failed to rebut the presumption of undue influence that arose because of the confidential relationship.