IN THE SUPREME COURT OF IOWA

No. 12–0222

Filed December 20, 2013

WILLIAM L. BURKHALTER,

Appellant,

vs.

STEVEN P. BURKHALTER,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Linn County, James H. 

Carter, Senior Judge.

The plaintiff in an action to contest a modification to the terms of a 

revocable trust appeals. DECISION OF COURT OF APPEALS 

VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

Martin A. Diaz and Elizabeth Jenadija Craig of Martin Diaz Law 

Firm, Iowa City, for appellant.

William G. Nicholson and Robert R. Rush of Rush & Nicholson, 

P.L.C., Cedar Rapids, for appellee.
2

APPEL, Justice.

William Burkhalter challenged an unfavorable modification of his 

father’s revocable trust that occurred just prior to his father’s death. 

William claimed his brother, Steven Burkhalter, unduly influenced their 

father and tortiously interfered with the trust. William also alleged his 

father lacked the necessary testamentary intent when he made the 

modification. At trial, the district court directed a verdict for Steven on 

the tortious interference claim, and the jury returned a verdict for Steven 

on the testamentary capacity and undue influence claims. William 

appealed, claiming the district court gave the jury an erroneous 

instruction on undue influence that improperly heightened his burden of 

proof and prejudicially repeated the causation element. Steven crossappealed, claiming the district court should have directed a verdict in his 

favor on all claims. On direct appeal, the court of appeals held the 

challenged instruction prejudiced William and remanded the case for a 

new trial on the undue influence claim. The court of appeals denied 

Steven’s cross-appeal.

On further review, we conclude the district court’s instruction 

accurately reflected the law of undue influence and did not unduly 

emphasize the causation element of the undue influence claim. As a 

result, we vacate the decision of the court of appeals and reinstate the 

jury verdict and the district court’s judgment thereon.

I. Factual and Procedural Background.

Louis D. Burkhalter Jr. created the Louis D. Burkhalter Jr. 

Revocable Trust on January 14, 1980. Under the original terms of the 

trust, William was the primary beneficiary following the deaths of Louis 

and his wife, Margaret. Upon William’s death, the trust directed the 

trustee to distribute the remaining assets to Louis’s heirs. The trust 
3

designated the United States Bank, n/k/a U.S. Bank, N.A., of Cedar 

Rapids as trustee.

In 1995, Louis amended the trust to name William’s wife, Cynthia, 

and his son, Matthew, as beneficiaries. Under the amended terms, 

Cynthia and Matthew would continue as beneficiaries following the 

deaths of Louis, Margaret, and William. Upon the deaths of Cynthia and 

Matthew, the remaining assets would be distributed to Louis’s heirs.

In 2003, Louis amended the trust to allow the trustee, at its 

discretion, to distribute trust assets for the support of Louis’s sister, 

Patricia. In 2004, Louis placed his home into the trust. At the time, 

William was living in the home with his family. Louis directed that 

William and his family have complete control of the residence as long as 

their decisions were reasonable and approved by the trustee.

By early July 2007, Louis, who was then ninety-eight years old, 

experienced a decline in health. He was moved from an independentliving wing at an assisted living community, where he had lived for 

several years, to a wing that provided twenty-four-hour care. Steven 

became aware of the change and, on July 9, traveled from his home in 

California to Iowa to visit his father. According to Steven, Louis and he 

had a conversation about the trust on July 11. During the conversation, 

Steven claimed, Louis indicated his desire to modify the trust to make 

Steven and William equal beneficiaries and instructed Steven to call the 

trustee to arrange the modification.

A few hours after the conversation with Louis, Steven met with a 

trust officer of the bank, who in turn called Louis’s attorney. The trust 

officer, a longtime advisor of Louis, met with Louis later that day without 

Steven being present. Louis’s attorney met with Louis the following day, 

July 12, again without Steven being present. The trust was modified 
4

July 13 to divide the trust assets equally between William and Steven.1 

Louis died six days later.

On January 25, 2008, William filed a petition claiming that the 

modification was the result of undue influence, that Louis lacked the 

testamentary capacity to make the change, and that Steven intentionally 

and improperly interfered with the distribution plan of the trust. Trial 

was held from October 31, 2011, to November 4. Following the close of 

evidence, Steven moved for a directed verdict on all claims. The district 

court directed a verdict on the tortious interference claim, but refused to 

direct a verdict on the undue influence and lack of testamentary capacity 

claims.

The parties then proceeded to haggle on jury instructions. With 

regard to undue influence, William generally modeled his requested jury 

instructions on the Iowa Civil Jury Instructions of the Iowa State Bar 

Association. The Iowa Civil Jury Instructions provide one instruction 

setting forth the elements of undue influence and another defining 

undue influence. Iowa Civil Jury Instruction 2700.4 sets forth the 

elements of undue influence:

The law presumes a person is free from undue influence. To 

overcome this presumption, plaintiff must prove each of the 

four following propositions:

1. At the time the will was made (testator) was 

susceptible to undue influence.

2. [Defendant] had the opportunity to exercise such 

influence and carry out the wrongful purpose.

3. [Defendant] was inclined to influence (testator) 

unduly for the purpose of getting an improper favor.

 

1Louis’s wife, Margaret, and sister, Patricia, were removed as beneficiaries of the 

trust at this time because they had predeceased Louis. William’s son, Matthew, and 

wife, Cynthia, remained as future beneficiaries of William’s fifty-percent share.
5

4. The result was clearly brought about by undue 

influence.

If the plaintiff has failed to prove one or more of these 

propositions, your verdict will be for the defendant. If 

plaintiff has proved all of these propositions, your verdict will 

be for plaintiff.

Iowa State Bar Ass’n, Iowa Civil Jury Instructions 2700.4 (2011). Iowa 

Civil Jury Instruction 2700.5 provides a definition of “undue influence”:

Undue influence means a person substitutes his or her 

intentions for those of the person making the will. The will 

then expresses the purpose and intent of the person 

exercising the influence, not those of the maker of the will. 

Undue influence must be present at the very time the will is 

signed and must be the controlling factor. The person 

charged with exercising undue influence need not be 

personally present when the will was being made or signed 

but the person’s influence must have been actively working 

at the time the will was being made and signed.

Id. 2700.5.

The district court’s proposed instruction merged these two model 

instructions. The district court’s proposed Instruction No. 2 stated:

In order for William to prevail on his claim of undue 

influence, he must prove by a preponderance of the evidence 

that at or about the time the trust provisions were changed 

all of the following circumstances existed:

1. Louis was susceptible to the type of influence 

described in Paragraph 4 of this instruction.

2. Steven had the opportunity to exercise such 

influence over Louis.

3. Steven was inclined to influence Louis for purposes 

of gaining favor.

4. Steven assumed a position of dominance over 

Louis’s decision to the extent that the decision to 

change the trust provisions was Steven’s decision 

rather than Louis’s decision.

5. The changes made to the trust provisions were 

clearly the result of the foregoing circumstances.
6

As is apparent, subparagraphs 1, 2, 3, and 5 of Instruction No. 2 

stated the substance of the elements of undue influence contained in 

Iowa Civil Jury Instruction 2700.4. Subparagraph 4, however, contained 

language related to the definition of undue influence contained in Iowa 

Civil Jury Instruction No. 2700.5.

William objected to the court’s proposed Instruction No. 2, but the 

district court declined to modify the instruction. The jury returned a 

verdict in favor of Steven on the remaining claims. William filed a motion 

for a new trial, which was denied, and this appeal followed.

We transferred the case to the court of appeals. The court of 

appeals reversed the district court and remanded for a new trial after

concluding the district court’s addition of subparagraph 4 prejudiced 

William. According to the court of appeals, the addition of subparagraph 

4 “added another step the plaintiff had to prove, thereby rendering the 

instruction faulty either through repetition, or by giving undue emphasis 

to otherwise correct statements of law.” Finally, the court of appeals 

noted it found sufficient evidence to deny Steven’s directed verdict and 

send the undue influence issue to the jury.

Steven sought further review, which we granted.

II. Standard of Review.

Challenges to jury instructions are reviewed for correction of errors 

at law. Koenig v. Koenig, 766 N.W.2d 635, 637 (Iowa 2009). Error in 

giving a jury instruction “does not merit reversal unless it results in 

prejudice.” Wells v. Enter. Rent-A-Car Midwest, 690 N.W.2d 33, 36 (Iowa 

2004). When the challenged instruction is “ ‘conflicting and confusing,’ ” 

error is presumed prejudicial and reversal is required. Koenig, 766 

N.W.2d at 637 (quoting Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 
7

575 (Iowa 1997)). Reversal is also required when the instruction 

contains a material misstatement of law. Waits, 572 N.W.2d at 575.

III. Discussion.

A. Introduction. As noted by one modern treatise, the notion of 

undue influence upon a testator is “a slippery concept at best.” Eunice 

L. Ross & Thomas J. Reed, Will Contests § 7:1 (2d ed.), available at 

http://www.westlaw.com (updated June 2013) [hereinafter Ross & 

Reed]. The treatise further notes that “[t]he courts have never been 

consistent in their definitions of the term, nor in the judicial tests used to 

evaluate proof of undue influence.” Id. § 7:1.

The difficulty with the notion of undue influence in the context of a 

will is illustrated by the question of the appropriate standard of proof 

required to prevail on a claim. On the one hand, undue influence seems 

like a relative of fraud, which generally requires a heightened standard of 

proof. See, e.g., Joseph Traub Arenson, The Doctrine of Undue Influence 

in Anglo American Law 4 (1953) [hereinafter Arenson] (noting that fraud 

and undue influence are similar in that someone has been unfairly 

enriched at the expense of another, but that “[u]ndue influence is a more 

restricted and more indefinite concept”). On the other hand, undue 

influence can occur without a material misrepresentation or omission, 

see In re Estate of Raedel, 568 A.2d 331, 335 (Vt. 1989), which makes it 

analogous to ordinary civil causes of action at law where a 

preponderance-of-the-evidence standard prevails.

This case requires us to consider the proper elements of an undue 

influence claim. In particular, the question arises whether an element of 

an undue influence claim is that the result is “clearly” the effect of undue 

influence. This “clearly” requirement sounds like clear-and-convincingevidence-light, at least as to causation.
8

These important legal questions arise against a backdrop of some 

judicial discomfort with the claim. The occasional but potentially very 

sharp unfairness that will result if undue influence claims are 

abandoned altogether seems like too much for courts to bear. See 

Arenson at 68 (declaring the evolution of undue influence doctrine a 

fortunate jurisprudential gain that extends social justice for “the aged 

and infirm, the weak, the dependent, the subservient and the 

inexperienced”). Yet, opportunistic strike litigation where the testator is 

not available to defend what may very well have been a choice of free will 

is not very attractive either. See John H. Langbein, Will Contests, 103 

Yale L.J. 2039, 2045 (1994) [hereinafter Langbein] (suggesting the will 

contest involving the Johnson & Johnson fortune revealed “deeply 

deficient institutions and procedures” in the United States that “would 

have been suppressed in short order” in any other Western country). 

Further, fact finders may be tempted not to focus on the free will of the 

testator, but rather on their own values or senses of propriety. 

Melanie B. Leslie, The Myth of Testamentary Freedom, 38 Ariz. L. Rev. 

235, 245 (1996) [hereinafter Leslie] (arguing that even though the 

contestant bears the burden of establishing undue influence, 

“determinations often are more dependent on courts’ normative views of 

the relationships between the testator, beneficiary and contestant than 

the actual presence or absence of factors often deemed indicative of 

undue influence”).

So, courts have struggled with the concept of undue influence. 

Today, it is our turn.

B. Positions of the Parties. William focuses his fire on 

Instruction No. 2’s portrayal of the elements of undue influence in two 

ways. First, William argues the addition of subparagraph 4 coupled with 
9

the “clearly” language of subparagraph 5 heightened his burden of proof 

to something higher than a preponderance of the evidence, which 

rendered the instruction conflicting, confusing, and prejudicial. 

According to William, the instruction allowed the jury to find the required 

elements of undue influence described in subparagraphs 1 through 4, 

but then conclude he could not prevail because subparagraph 5 required 

him to show the modifications to the trust “were clearly the result” of the 

circumstances described in the previous subparagraphs. He also points 

to Instruction No. 2’s introductory paragraph, which instructed the jury 

to apply a preponderance-of-the-evidence standard. Second, William 

asserts Instruction No. 2 was unduly repetitive. William notes that 

subparagraphs 4 and 5 both address causation and that, if he proved 

subparagraph 4, he should have prevailed on his claim. Accordingly, 

William requests a new trial.

Steven responds that Instruction No. 2 was a correct statement of 

law. He claims the requirement of subparagraph 5 that the action 

complained of must clearly be the result of undue influence is well 

supported by our caselaw. See, e.g., In re Estate of Dankbar, 430 N.W.2d 

124, 128 (Iowa 1988); In re Estate of Davenport, 346 N.W.2d 530, 532 

(Iowa 1984). He notes the rationale of the substantive standard is to 

prevent weak circumstantial evidence from supporting a finding of undue 

influence. See 1 Sheldon F. Kurtz, Kurtz on Iowa Estates § 4.45, at 175 

(1981) [hereinafter Kurtz]. Steven also claims subparagraph 4 is a 

correct statement of law taken from the definition of undue influence 

contained in Iowa Civil Jury Instruction 2700.5 and supported by 

caselaw. See, e.g., In re Estate of Cory, 169 N.W.2d 837, 842 (Iowa 

1969); In re Estate of Roberts, 258 Iowa 880, 888, 140 N.W.2d 725, 730 

(1966). Under the circumstances, Steven sees no undue repetition of a 
10

claim or defense favorable to him. He argues it was not error to combine 

subparagraphs 4 and 5 because jury instructions must be read together 

and considered in their entirety. See Anderson v. Webster City Cmty. 

Sch. Dist., 620 N.W.2d 263, 265 (Iowa 2000); Leaf v. Goodyear Tire & 

Rubber Co., 590 N.W.2d 525, 536 (Iowa 1999).

Steven further claims nothing in Instruction No. 2 altered the

standard of proof. Steven argues subparagraph 5 dealt solely with the 

preponderance-of-the-evidence standard and provided an accurate 

statement of law. He further notes, the preponderance-of-the-evidence 

standard was repeated in Instruction No. 2’s first paragraph. Steven 

argues that because instructions must be read as a whole, if some part 

of Instruction No. 2 should not have been given, error was nonetheless 

cured because another part of the instruction properly advised the jury 

of the legal principles involved. See Moser v. Stallings, 387 N.W.2d 599, 

605 (Iowa 1986). When the instructions are read as a whole, Steven 

argues, any error was not prejudicial.

Steven further responds by noting that there was nothing unduly 

prejudicial about subparagraphs 4 and 5. He notes that in order to be 

unduly prejudicial, an instruction must repeat a defense or claim 

favorable to one party in such a fashion as to be unfair. Steven asserts 

subparagraph 5 amounts to clarification of what must be shown to 

prevail on an undue influence claim. 

In addition, Steven claims William’s objection was not specific 

enough to alert the district court to the issues raised on appeal. Steven 

also cross-appeals, contending he was entitled to a directed verdict on 

the undue influence claim. Because of our disposition, we need not 

address these issues.
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C. Iowa Caselaw on Undue Influence.

1. Standard of proof. The earliest Iowa undue influence cases 

embraced a preponderance-of-the-evidence standard. See Webber v. 

Sullivan, 58 Iowa 260, 267, 12 N.W. 319, 323 (1882) (approving undue 

influence instruction using a preponderance-of-the-evidence standard); 

McIntire v. McConn, 28 Iowa 480, 485–86 (1870) (noting the 

preponderance of evidence was against a finding of undue influence); see 

also Jamison v. Jamison, 113 Iowa 720, 723, 84 N.W. 705, 706 (1900) 

(rejecting “clear, satisfactory, and convincing” standard in law action 

against estate to enforce promises under will). In In re Townsend’s 

Estate, 128 Iowa 621, 624, 105 N.W. 110, 110–11 (1905), however, the

court applied a heightened standard of proof, holding that, at least where 

the testator was of sound mind and not an easily influenced individual, 

the required showing was one of clear and convincing evidence of undue 

influence.

After Townsend’s Estate, however, we generally applied a 

preponderance-of-the-evidence standard for claims of undue influence. 

See, e.g., In re Behrend’s Will, 233 Iowa 812, 817, 10 N.W.2d 651, 654–

55 (1943); In re Busick’s Will, 191 Iowa 524, 530, 182 N.W. 815, 818 

(1921); Zinkula v. Zinkula, 171 Iowa 287, 299, 154 N.W. 158, 162 (1915); 

Ross v. Ross, 140 Iowa 51, 57, 117 N.W. 1105, 1107–08 (1908). Yet, 

there were at least two outliers. See Arndt v. Lapel, 214 Iowa 594, 606–

07, 243 N.W. 605, 610 (1932) (applying a “clear, satisfactory, and 

convincing” standard to a claim that a grantee secured the transfer of a 

deed by undue influence); McNeer v. Beck, 205 Iowa 196, 198, 217 N.W. 

825, 826 (1928) (same).

Finally, in In re Estate of Todd, 585 N.W.2d 273, 275–77 & n.2 

(Iowa 1998), we explicitly disavowed the heightened standard of proof for 
12

undue influence claims in will contests. We canvassed the law of other 

jurisdictions and recognized that some states applied a heightened 

standard in undue influence cases in probate, but noted the majority of 

states followed the preponderance standard. Id. at 275–76. We noted 

that challenges to testamentary dispositions on the grounds of undue 

influence in probate in Iowa were, by statute, triable as an action at law. 

Id. at 275. We cited the longstanding rule in Iowa that “ ‘in law cases 

questions of fact are to be determined from the preponderance of the 

evidence.’ ” Id. at 276 (quoting Jamison, 113 Iowa at 723, 84 N.W. at

706). We reasoned that because will contests in Iowa were actions at law 

where the preponderance-of-the-evidence standard ordinarily applied, we 

would follow the majority rule. Id. We also expressly disavowed 

Townsend’s Estate to the extent it stood for a different standard. Id. at 

276 n.2. We reaffirmed, however, that if a confidential relationship 

existed between the testator and the putative beneficiary, the burden 

shifted “to the recipient ‘to establish by clear and convincing proof that 

the advantage was procured without undue influence.’ ” Id. at 276

(quoting In re Estate of Herm, 284 N.W.2d 191, 200 (Iowa 1979)).

2. Elements of undue influence. While most Iowa cases reject a 

clear and convincing standard of proof generally for undue influence 

claims, Iowa law has employed a heightened substantive standard for 

finding undue influence. In In re Ankeny’s Estate, 238 Iowa 754, 760, 28 

N.W.2d 414, 417 (1947), we cited with favor a note in the Iowa Law 

Review as “set[ting] out clearly the rules which should govern” undue 

influence claims. The note stated:

“The four elements necessary to be proved in order to 

establish undue influence are as follows: (1) a person 

unquestionably subject to undue influence, (2) opportunity to

exercise such influence and effect the wrongful purpose, (3) a 
13

disposition to influence unduly for the purposes of procuring 

an improper favor, and (4) a result clearly appearing to be 

the effect of the supposed influence.”

Comments on Recent Cases, Wills—When Undue Influence Becomes a 

Jury Question, 30 Iowa L. Rev. 321, 322 (1945) (emphasis added)

(quoting In re Leisch’s Will, 267 N.W. 268, 271 (Wis. 1936)). Thus, 

although most Iowa cases employed a preponderance-of-the-evidence 

standard as the burden of proof, the substantive requirements of the 

claim demanded proof that a person was “unquestionably” subject to 

influence and that the result clearly appeared to be the effect of undue 

influence.

The requirement that a testator must be “unquestionably” subject 

to undue influence was abandoned in Johnstone v. Johnstone, 190 

N.W.2d 421, 426 (Iowa 1971), for a requirement that a testator be 

“susceptible to undue influence.” (Internal quotation marks omitted.)

The Johnstone court noted the former phrase had been imported from 

Leisch’s Will, a 1936 Wisconsin Supreme Court case, but that the 

Wisconsin court did not repeat the qualification in later cases. 

Johnstone, 190 N.W.2d at 425. The Johnstone court reasoned the 

language, if literally applied, would make it almost impossible to prove an 

undue influence claim. Id.

While we have abandoned the requirement that a testator be 

“unquestionably” subject to undue influence, we have not departed from 

the requirement that the result in a will contest clearly show the effects 

of undue influence. Prior to Estate of Todd, our caselaw repeated the 

“clearly” requirement numerous times. See, e.g., In re Estate of Bayer, 

574 N.W.2d 667, 671 (Iowa 1998); Estate of Dankbar, 430 N.W.2d at 128;

Estate of Davenport, 346 N.W.2d at 532; Estate of Herm, 284 N.W.2d at

201; Frazier v. State Cent. Sav. Bank, 217 N.W.2d 238, 244 (Iowa 1974). 
14

In Estate of Todd, even though we rejected the higher standard of proof 

for will contests, we nonetheless continued to recognize as valid our 

caselaw that declared an element of undue influence was a result that

was “clearly the effect of undue influence.” 585 N.W.2d at 277 & n.4. 

Following these cases, Iowa Civil Jury Instruction No. 2700.4 requires 

that the result be “clearly brought about by undue influence.”

3. Summary of Iowa caselaw. In sum, while recognizing the split 

in caselaw across the country, we have held that in a will contest where 

no fiduciary relationship is involved, undue influence must be proved by 

a preponderance of the evidence. Id. at 275–77. Though we have 

rejected the clear, satisfactory, and convincing standard of proof, we have 

nonetheless held an element of undue influence is a “result clearly the 

effect of undue influence.” Id. at 277 & n.4; see also, e.g., Ankeny’s 

Estate, 238 Iowa at 760, 28 N.W.2d at 417. We have not regarded 

rejection of a clear, satisfactory, and convincing standard of proof as 

inconsistent with this heightened “clearly” causation requirement in 

undue influence cases. See Estate of Todd, 585 N.W.2d at 277.

D. Caselaw on Undue Influence from Other States.

1. Standard of proof. As indicated in Estate of Todd, most states 

apply a preponderance-of-the-evidence standard to undue influence 

claims. See, e.g., Rose v. Dunn, 679 S.W.2d 180, 182 (Ark. 1984); 

Lamborn v. Kirkpatrick, 50 P.2d 542, 544 (Colo. 1935); In re Estate of 

West, 522 A.2d 1256, 1264 (Del. 1987); Caranci v. Howard, 708 A.2d 

1321, 1324 (R.I. 1998); In re Estate of Duebendorfer, 721 N.W.2d 438, 

446 (S.D. 2006); In re Estate of Waters, 629 P.2d 470, 473 (Wyo. 1981); 

see also In re Estate of Cooch, 116 N.W.2d 740, 743 (Mich. 1962) 

(requiring “evidence of probative force beyond mere suspicion”); Ross & 

Reed § 7:11 n.3 (citing cases holding a will contestant must prove undue 
15

influence by a preponderance of the evidence). The preponderance-ofthe-evidence standard is defended on the ground it is the same standard 

generally applied in civil actions. See In re Estate of Otto, 494 N.W.2d 

169, 173 (N.D. 1992) (“The governing standard for undue influence 

challenges, as with most civil matters, is a preponderance of the 

evidence.”); see also Hack v. Janes, 878 So. 2d 440, 444 (Fla. Dist. Ct. 

App. 1997) (“Absent clear direction from the Legislature, we find no 

reason to deviate from that standard here.”).

There is a contrary minority view. Some states heighten the 

standard and require contestants to prove their claim by clear and 

convincing evidence. See, e.g., Estate of Langley, 586 A.2d 1270, 1271 

(Me. 1991); In re Davis’ Will, 101 A.2d 521, 522 (N.J. 1953); Chapman v. 

Varela, 213 P.3d 1109, 1114 (N.M. 2009); In re Estate of Hamm, 227 

N.W.2d 34, 35 (Wis. 1975); see also Ross & Reed § 7:11 n.4 (citing cases 

holding a will contestant must prove undue influence by clear and 

convincing evidence). In In re Estate of Bennett, 865 P.2d 1062, 1068

(Kan. Ct. App. 1993), the court explained the rationale underlying the 

application of a clear-and-convincing-evidence standard to an undue 

influence claim is that a will is presumed valid and should be overcome 

only upon a substantial showing. The court also characterized undue 

influence as a species of fraud, which ordinarily requires a higher 

standard of proof. Id. at 1069.

A somewhat different rationale for a heightened standard was 

expressed in Taylor v. Commissioner of Mental Health & Mental 

Retardation, 481 A.2d 139, 141 (Me. 1984), a case involving the question 

of the appropriate standard for release of a defendant found not guilty by 

reason of insanity. The court emphasized the purpose of a standard of 

proof is to “ ‘instruct the factfinder concerning the degree of confidence
16

our society thinks he should have in the correctness of factual 

conclusions for a particular type of adjudication.’ ” Id. at 150 (quoting In 

re Winship, 397 U.S. 358, 370, 90 S. Ct. 1068, 1076, 25 L. Ed. 2d 368, 

379 (1970) (Harlan, J., concurring)). Thus, the standard of proof results 

“from a reasoned balancing of all the interests, public and private, that 

are implicated in the particular factual determination.” Id.

Hawaii employs a mixed approach. Generally, the standard of 

proof in an undue influence case is a preponderance of the evidence. In 

re Estate of Herbert, 979 P.2d 39, 51 (Haw. 1999). If, however, the undue 

influence is shown by circumstantial evidence, “the indirect evidence 

must be of a clear and convincing character.” Id. at 53 (citation and 

internal quotation marks omitted).

Finally, in as many as thirteen jurisdictions, there appears to be 

no caselaw articulating the standard of proof in undue influence cases 

involving wills. See Ross & Reed § 7:11 n.5. In some jurisdictions, 

courts have adopted language other than a preponderance of the 

evidence or clear and convincing evidence to describe the necessary 

standard of proof. For instance, one appellate court has stated the 

evidence must be “of sufficient character, substance, and weight to 

furnish a firm foundation for a jury’s verdict.” Fischer v. Heckerman, 772 

S.W.2d 642, 646 (Ky. Ct. App. 1989). What such a vague phrase means 

is unclear, but such phrases are designed to weed out cases appellate 

courts regard as simply too speculative to support relief.

2. Elements of undue influence. Many states have tried to identify 

elements or factors supporting a claim of undue influence to set aside a 

will, with variations from state to state. See Ross & Reed § 7:2. Some 

states have approached the problem with a flexible factor test 

reminiscent of the equitable origins of undue influence rather than a 
17

more structured approach involving mandatory legal elements. See, e.g.,

Crittell v. Bingo, 36 P.3d 634, 639 (Alaska 2001) (listing various factors to 

consider); Mullin v. Brown, 115 P.3d 139, 144 (Ariz. Ct. App. 2005)

(listing eight factors); Bye v. Mattingly, 975 S.W.2d 451, 457 (Ky. 1998)

(establishing seven “badges” of undue influence); Ruestman v. Ruestman, 

111 S.W.3d 464, 479 (Mo. Ct. App. 2003) (identifying factors to be taken 

into account); In re Estate of Eggebrecht, 967 P.2d 388, 391 (Mont. 1998)

(indicating court should take into account all surrounding 

circumstances).

In those states that establish elements of undue influence, a 

majority does not contain a requirement that the will clearly be the result 

of undue influence and instead simply require that the will was the 

result of undue influence. See, e.g., Dinan v. Marchand, 903 A.2d 201, 

204 n.1 (Conn. 2006); Gmeiner v. Yacte, 592 P.2d 57, 63 (Idaho 1979); In 

re Estate of Bacon, 645 N.Y.S.2d 1016, 1019 (Sur. Ct. 1996); In re Will of 

Campbell, 573 S.E.2d 550, 560 (N.C. Ct. App. 2002); In re Estate of Dion, 

623 N.W.2d 720, 728 (N.D. 2001); West v. Henry, 184 N.E.2d 200, 202

(Ohio 1962); Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963).

There are, however, other Midwestern states that adopt the same 

approach as Iowa. In a long line of cases, the South Dakota Supreme 

Court, citing established precedent, found undue influence in a will 

contest required “a result clearly showing the effects of undue influence.” 

See, e.g., Stockwell v. Stockwell, 790 N.W.2d 52, 64 (S.D. 2010); In re 

Estate of Pringle, 751 N.W.2d 277, 291 (S.D. 2008); Estate of 

Duebendorfer, 721 N.W.2d at 446; In re Estate of Schnell, 683 N.W.2d 

415, 421 (S.D. 2004); In re Estate of Holan, 621 N.W.2d 588, 592 (S.D. 

2001); In re Estate of Dokken, 604 N.W.2d 487, 495 (S.D. 2000); In re 

Estate of Elliott, 537 N.W.2d 660, 663 (S.D. 1995); In re Estate of Smith, 
18

520 N.W.2d 80, 85 n.2 (S.D. 1994); In re Estate of Till, 458 N.W.2d 521, 

525 (S.D. 1990); In re Estate of Zech, 285 N.W.2d 236, 240 (S.D. 1979); 

In re Estate of Landeen, 264 N.W.2d 521, 523 (S.D. 1978); In re Estate of 

Anders, 226 N.W.2d 170, 174 (S.D. 1975); In re Estate of Metz, 100 

N.W.2d 393, 394 (S.D. 1960).

The Supreme Court of Nebraska has taken a similar approach. 

See, e.g., In re Estate of Hedke, 775 N.W.2d 13, 28 (Neb. 2009); In re 

Estate of Novak, 458 N.W.2d 221, 224 (Neb. 1990); In re Estate of 

Peterson, 439 N.W.2d 516, 520 (Neb. 1989); In re Estate of Villwok, 413 

N.W.2d 921, 924 (Neb. 1987); In re Estate of Price, 388 N.W.2d 72, 79 

(Neb. 1986); In re Estate of Gloe, 215 N.W.2d 98, 101 (Neb. 1974); In re 

Estate of Gorthy, 100 N.W.2d 857, 864 (Neb. 1960); In re Bainbridge’s 

Estate, 36 N.W.2d 625, 626 (Neb. 1949); In re Bowman’s Estate, 9 

N.W.2d 801, 806 (Neb. 1943). Notably, both Nebraska and South 

Dakota, like Iowa, employ a preponderance-of-the-evidence standard to 

undue influence claims in will contests when no fiduciary relationship is 

present. See, e.g., Estate of Price, 388 N.W.2d at 76–77; Estate of Holan, 

621 N.W.2d at 591.

Older Wisconsin cases also require a result clearly appearing to be 

the effect of the supposed influence. See, e.g., In re Estate of Komarr, 

175 N.W.2d 473, 477–78 (Wis. 1970); In re Will & Estate of Freitag, 101 

N.W.2d 108, 109 (Wis. 1960); In re Beyer’s Estate, 55 N.W.2d 401, 403

(Wis. 1952); In re Feeley’s Estate, 33 N.W.2d 139, 142 (Wis. 1948); In re 

King’s Will, 29 N.W.2d 69, 72 (Wis. 1947); In re Faulks’ Will, 17 N.W.2d 

423, 440 (Wis. 1945); In re Scherrer’s Estate, 7 N.W.2d 848, 853 (Wis. 

1943); In re Raasch’s Will, 284 N.W. 571, 575 (Wis. 1939); Leisch’s Will, 

267 N.W. at 271; In re Schaefer’s Estate, 241 N.W. 382, 385 (Wis. 1932).

Later cases, however, seem to abandon the requirement, see, e.g., In re 
19

Estate of Dejmal, 289 N.W.2d 813, 819 (Wis. 1980) (requiring “a result 

caused by, or the effect of such undue influence”), perhaps because 

Wisconsin has adopted a clear-and-convincing-evidence standard for 

undue influence claims, see, e.g., In re Estate of Sensenbrenner, 278 

N.W.2d 887, 890 (Wis. 1979) (requiring the presumption of a valid will to 

be overcome by clear, satisfactory, and convincing evidence of undue 

influence).

E. Secondary Authority on Undue Influence.

1. Burden of proof. The Restatement (Third) of Property provides 

that the burden of establishing undue influence rests on the party 

contesting the validity of the donative transfer. Restatement (Third) of 

Property: Wills and Other Donative Transfers § 8.3 cmt. b, at 144 (2003)

[hereinafter Restatement (Third)]. The comment does not, however, 

address the appropriate standard of proof for that burden. Similarly, the 

Uniform Probate Code provides that contestants of a will have the burden 

of establishing undue influence, but does not indicate the appropriate 

standard. Unif. Probate Code § 3-407 (amended 2010), 8 (II) U.L.A. 95 

(2013). A leading treatise declares that “[i]t is usually said” that the 

burden of proof is on the party alleging the undue influence by a 

preponderance of the evidence. 3 William J. Bowe & Douglas H. Parker, 

Page on the Law of Wills § 29.79, at 696 (2004). Another treatise simply 

declares the burden of proving undue influence is on the contestant. 

William M. McGovern, Sheldon F. Kurtz, & David M. English, Principles 

of Wills, Trusts & Estates § 7.3, at 359 (2d ed. 2012) [hereinafter 

Principles of Wills, Trusts & Estates].

2. Elements of undue influence. We begin our review of secondary 

authority of elements of undue influence by considering the Restatement 

(Third). Section 8.3 of the Restatement (Third) considers claims of undue 
20

influence, duress, or fraud. See Restatement (Third) § 8.3, at 143–44. 

Section 8.3 generally provides that a donative transfer can be found to 

have been procured by undue influence where it is shown that “such 

influence . . . overcame the donor’s free will and caused the donor to 

make a donative transfer that the donor would not otherwise have 

made.” Id. § 8.3, at 143.

Comment e addresses cases where, as is often true, there is no 

direct evidence of undue influence and the claim must be proven through 

circumstantial evidence. See id. § 8.3 cmt. e, at 145. Comment e recites 

traditional elements of undue influence, including a causation element 

that “there was a result appearing to be the effect of the undue 

influence.” Id. The term “clearly” does not appear in the comment.

However, there is authority applying an approach similar to that in 

Ankeny’s Estate. For instance, the annotation appearing at 79 Am. Jur.

2d Wills § 359, at 576–77 (2013) states the elements of undue influence 

include:

(1) the decedent’s susceptibility to undue influence; (2) 

opportunity to exert such influence; (3) a disposition to do so 

for an improper purpose; and (4) a result clearly showing the 

effects of undue influence.

(Emphasis added.) Similarly, 95 C.J.S. Wills § 375, at 335 (2011) states 

the fourth element of undue influence is that “the result—reflected in the 

will—was clearly the effect of undue influence.” (Emphasis added.) One 

treatise also declares a contestant must prove that “the will reflects a 

disposition clearly appearing to be the product of the undue influence.” 

Principles of Wills, Trusts, and Estates § 7.3, at 354–55 (emphasis added).

3. The case for abandonment. While conventional legal authorities 

debate the nuances, critics of undue influence in wills have recently been 

energized. At least one has called for abandonment of the doctrine 
21

altogether. See generally Carla Spivack, Why The Testamentary Doctrine 

of Undue Influence Should Be Abolished, 58 U. Kan. L. Rev. 245 (2010)

[hereinafter Spivack]. While no one in this litigation is calling for such a 

radical step, the underlying critique of the doctrine may shed some light

on the less draconian choices presented in this case.

The case for abandonment notes, as a general matter, that courts 

have failed to provide any standard of clarity, fairness, or predictability 

that a legal doctrine should provide. E.g., id. at 246. According to one 

commentator, the undue influence doctrine “ostensibly safeguards 

testamentary freedom” yet determinations “often are more dependent on 

courts’ normative views of the relationships between the testator, 

beneficiary and contestant than by the actual presence or absence of

factors often deemed indicative of undue influence.” Leslie, 38 Ariz. L. 

Rev. at 244–45. In short, because of its spongy character, it has been 

argued the law of undue influence may undermine testamentary freedom 

in order to promote social goals thought to be desirable. Id. at 236–37; 

see also Spivack at 248, 298.

F. Resolution of Issues in this Case.

1. Burden of proof to be employed. We first consider the 

substantive question of whether the court’s instruction that causation 

must be clearly proved is consistent with Iowa law. Pursuant to Iowa 

Rule of Civil Procedure 1.924, the district court must “instruct the jury 

as to the law applicable to all material issues in the case.” The 

instructions “ ‘must convey the applicable law in such a way that the 

jury has a clear understanding of the issues it must decide.’ ” Boyle v. 

Alum-Line, Inc., 710 N.W.2d 741, 748–49 (Iowa 2006) (quoting Thompson 

v. City of Des Moines, 564 N.W.2d 839, 846 (Iowa 1997)). William 

challenges the “clearly” requirement in Instruction No. 2 as inconsistent 
22

with the established Iowa law that a preponderance of the evidence is the 

appropriate standard to prove undue influence.

Certainly William is correct in asserting that we have repeatedly 

held the standard of proof in undue influence cases is a preponderance 

of the evidence. See, e.g., Estate of Todd, 585 N.W.2d at 275–76.

However, we have also repeatedly held the fourth element of an undue 

influence claim, causation, must be clearly proved. See, e.g., id. at 277 

n.4; Ankeny’s Estate, 238 Iowa at 760, 28 N.W.2d at 417.

The question arises whether these two concepts can coexist. In 

Estate of Todd, we found no inconsistency in generally applying a 

preponderance-of-the-evidence standard to the elements of undue

influence, but at the same time requiring that causation be clearly

established. 585 N.W.2d at 277 & n.4. The cases since Estate of Todd

have applied our established undue influence law. The courts of 

Nebraska and South Dakota have adopted a similar approach. See, e.g., 

Estate of Price, 388 N.W.2d at 76–77; Estate of Holan, 621 N.W.2d at 

591–92. There is at least some support for the approach in secondary 

commentary. In light of Estate of Todd, the authorities in South Dakota 

and Nebraska, and the supportive authorities, we conclude a 

requirement that causation be clearly established is not inconsistent 

with the preponderance-of-the-evidence standard generally applying to 

the other elements of undue influence.

The question remains, however, whether we should abandon the 

“clearly” requirement in causation. We decline to do so. A heightened 

causation element in undue influence cases makes sense. In cases 

involving challenges to wills based upon undue influence, the central 

issue is whether the acts of the testator were a product of free will or 

coercion. The testator, however, is not available to testify and, as a 
23

result, a speculative element is necessarily introduced into the claim. As 

colorfully noted in the commentary, will contests necessarily apply a 

“worst evidence” rule. Langbein, 103 Yale L.J. at 2044.

Further, it is not always easy to distinguish ordinary permissible 

influences on a testator from improper coercion. The injection of the 

word “clearly” into the fourth element of undue influence is designed to 

add a measure of protection to the free will of a testator, filter out claims 

that are unduly speculative, and to prevent the doctrine from expanding 

beyond its limited scope. All of the other elements of undue influence 

might be present—susceptibility, opportunity, and disposition—and, still,

the will provisions might be the result of the testator’s free will.

The heightened causation requirement of “clearly” ensures the 

other factors really mattered to the end result. As we noted in Estate of

Davenport, weak circumstantial evidence that at most raises the 

possibility of influence is not sufficient. 346 N.W.2d at 532. We quoted 

at length from a leading Iowa probate treatise, which stated:

“It is not sufficient that persuasion alone was asserted 

against the testator. The courts have rightly recognized that 

most persons assert some influence over others, through 

friendship or familial duties, which may have some 

tangential effect on their receiving a testamentary benefit. 

This influence is not tainted. Rather, undue influence must 

dominate the motives of the testator in executing his will. It 

must be equivalent to ‘moral coercion.’ ”

Id. (quoting 1 Kurtz § 4.45, at 175). The “clearly” requirement in our law 

helps prevent our undue influence doctrine from being over inclusive, as

it will tend to deter juries from finding undue influence merely because 

they disagree with the terms of a will.

We recognize that many other jurisdictions reach this result by 

applying a clear and convincing evidentiary standard with respect to all 

elements of undue influence. We rejected that approach in Estate of 
24

Todd. 585 N.W.2d at 277. Neither party asks us to revisit the issue. In 

any event, we think it permissible to heighten the plaintiff’s burden

through the substance of an elements-based instruction. Our caselaw 

recognizes that will contests, by statute, are actions at law, which means 

jury trials are available and the applicable standard of review is a

preponderance of the evidence. Yet, by judicially establishing a 

somewhat higher causation standard, we increase the likelihood that 

specious undue influence claims are weeded out.

We do not think the instruction is so confusing as to require 

reversal. The instruction required that in order to succeed, William had 

to prove his undue influence claim by a preponderance of the evidence. 

One of the elements—causation—requires clear proof. We think a 

reasonable jury would understand that it must find by a preponderance 

of the evidence that the changes were clearly the result of undue 

influence.

2. Repetition. We now turn to the issue of whether the instruction 

was unduly repetitive. Instructions may not give undue prominence to 

certain evidence involved in the case. E.g., State v. Marsh, 392 N.W.2d 

132, 133 (Iowa 1986); see also 75A Am. Jur. 2d Trial § 981, at 618–19 

(2007). Further, instructions may not repeat even correct statements of 

law to the point of undue emphasis. E.g., Andrews v. Struble, 178 

N.W.2d 391, 400 (Iowa 1970). In sum, the bottom line is that the 

instructions must not “give undue prominence to any particular aspect of 

a case,” Vachon v. Broadlawns, 490 N.W.2d 820, 822 (Iowa 1992), which 

may include a “particular theory, defense, stipulation, burden of proof, or 

piece of evidence,” Olson v. Prosoco, Inc., 522 N.W.2d 284, 287 (Iowa 

1994). William asserts that by instructing the jury regarding the 

causation element of undue influence in both subparagraphs 4 and 5, 
25

the instruction was flawed as unduly emphasizing certain evidence in the 

case.

We have on a number of occasions found instructions that unduly 

emphasized certain evidence were flawed and required reversal. For 

example, in Clarke v. Hubbell, 249 Iowa 306, 315–16, 86 N.W.2d 905, 

910–11 (1957), we found that the district court, by repeating time and 

again the principle that a city was not an insurer for all injuries that 

occurred on its premises, committed reversible error. By its frequent 

repetition of a limiting concept in the law, the court gave undue 

emphasis to a potential defense in the case.

In Andrews, however, we found instructions were not repetitious 

where one instruction informed the jury that if it found the negligence of 

the defendant and other persons proximately caused the plaintiff’s 

injury, the concurring negligence would not affect the plaintiff’s right to 

recover solely from the defendant, and a second instruction informed the 

jury that if it found the defendant’s negligence was the sole proximate 

cause of the injury, the plaintiff was entitled to recover. 178 N.W.2d at 

400. We noted that while the latter statement may have been 

repetitious, the statement “was of some aid in clarifying the requirement 

of proximate cause.” Id.

This case is more like Andrews than Clarke. Subparagraphs 4 and 

5 did not contain the type of pointless repetition found in Clarke. 

Subparagraph 4 provided instructions related to the definition of undue

influence not contained in subparagraph 5, and subparagraph 5 

provided an additional legal requirement not contained in subparagraph 

4—namely, that the evidence must show that changes in the trust 

document were “clearly the result of the foregoing circumstances.” While 

the instructions overlap to some degree, that is often the case in jury 
26

instructions that build upon concepts of law. Further, a single repetition 

coupled with a clarification of the law does not amount to error. Id.

IV. Conclusion.

For the above reasons, we vacate the decision of the court of 

appeals and affirm the judgment of the district court. Further, because 

of our resolution of this case, we need not address Steven’s cross-appeal.

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT AFFIRMED.