Academic

Sex, Testation and Undue Influence

By Bridget Crawford

In the basic Wills, Trusts & Estates course, students learn that transfers brought about by undue influence, duress and fraud are invalid.  The Restatement (Third) of Property: Wills and Other Donative Transfers § 8.3(b) defines undue influence this way:  “A donative transfer is procured by undue influence if the wrongdoer exerted such influence over the donor that it overcame the donor’s free will and caused the donor to make a donative transfer that the donor would not otherwise have made.” 

Many, but not all, undue influence claims arise out of situations involving non-marital sexual relationships or second (or third or fourth) marriages, where the surviving spouse is not the parent of the decedent’s children.  Why is it that sex and/or love is a common backdrop for undue influence cases? 

I asked my students three questions, and received these answers from a class of 80 students having a roughly equal number of women and men:

(1) Are men unduly influenced by sexual attention from women?
  Yes 61%
  No 35%
  I don’t know 4%

(2) Are women unduly influenced by sexual attention from men?
  Yes 23%
  No 73%
  I don’t know 4%

(3) How likely is it that you would want to make a death-time transfer to someone with whom you are (or were) in a romantic relationship?
  Very likely 33%
  Somewhat likely 29%
  I’m neutral 11%
  Somewhat unlikely 11%
  Very unlikely 16%

The survey is far from scientific; I planned it as a conversation starter.  Students responded (anonymously) via handheld response cards (aka “clickers”).  I don’t claim that the results reveal anything about testation or undue influence.  But the results might reveal something about students’ perceptions of the impact of sexual relationships on donative transfers. 

My students perceive that men (61%) are more likely than women (23%) to be “unduly influenced” by sexual attention from the opposite sex (the survey’s heteronormative bias is acknowledged).  Is that because men “just care about sex” or is it because women’s sexual attention is pereceived a quasi superpower?  Is it because men use money to get sex, or because sex gets money?  Is it because sex overcomes men’s “free will,” but women remain more rational more often?  I have no idea.

62% of students self-reported that they were “somewhat likely” (29%) or “very likely” (33%) to make a death-time transfer to a romantic partner.  In a class (roughly) evenly divided by gender, does this suggest that the students’ perception of women’s susceptibility to influence is inaccurate?  Or would the result be more robust if Question 3 also referred to undue influence? 

-Bridget Crawford

Full post as published by Feminist Law Professors on September 23, 2008 (boomark / email).