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Active Assistance

September 2016

The Oklahoma Supreme Court recently issued a decision tightening standards for undue influence, making it harder to protect our vulnerable population against exploitation.

In 1987, Gayle Richardson obtained a joint tenancy deed from her grandmother. The grandmother died later that year. Richardson's sister, Pat Blair, received notice of termination of joint tenancy. Years later, Blair sued Richardson, seeking to invalidate the deed. Blair invoked the presumption of undue influence by alleging (i) a confidential relationship between Richardson and her grandmother, and (ii) that Richardson actively assisted in the deed's preparation. The decision added significantly to prior decisions interpreting these two elements.

A confidential relationship is shown through some level of trust or confidence between the stronger and weaker persons. Familial relationships, including parents or grandparents, are used to show this type of trust. But here, the court found no such relationship because Richardson had no check-writing privileges, and didn't live with her grandmother. Richardson helped her grandmother by taking her shopping and on other errands. While they spent time together, the court determined this was not enough to establish a close and confidential relationship.

The court also found that Richardson did not actively assist in preparation of the joint tenancy deed. Richardson asked about title to the property, and then obtained the form used for the deed from a local office supply store. Richardson drove her grandmother to an abstract company where the form was filled out and executed. This conduct not only indicates active assistance, but also supports a finding of a close and confidential relationship. But the court found neither. 

Under this new, tightened standard, active assistance must relate to the substance of the challenged instrument - giving instructions regarding the changes to be made, or personally revising the form. The Blair opinion overlooks two rules that would have changed the opinion, if not the result. First, undue influence is rarely established by direct evidence, but is usually proved by indirect, or circumstantial evidence. The court's decision appears to hold Blair to a higher standard.

Another issue might have avoided the need for this decision. Under Oklahoma law, undue influence must be raised within five years. This defense is difficult to apply for testamentary instruments, where challengers may be unaware of the instrument and lack standing prior to the testator's death. But the limitations period would apply here, where the deed was recorded and resulted in a vested interest.