What is the first element of undue influence that must be established by the contestant?

In the context of undue influence in wills and trusts, establishing a susceptible testator is pivotal. This first element is crucial because it sets the stage to determine whether the testator was vulnerable to being unduly influenced in their decision-making process regarding their estate plan. A susceptible testator may be characterized by advanced age, illness, or a lack of understanding regarding the nature of the changes being made to their will or trust.

When a contestant claims that undue influence occurred, they must demonstrate that the testator was in a position to be influenced, which often includes a psychological or emotional vulnerability. This vulnerability creates an environment where a person might be more easily persuaded or pressured to make decisions that are not entirely their own, especially regarding significant matters such as the distribution of their assets upon death.

Once the susceptibility is established, it becomes more straightforward to analyze the other elements of undue influence, such as the presence of an opportunity to exert influence and the specific disposition to do so. Therefore, pinpointing this first element is foundational in building a case around undue influence.