Sherman: Can Religious Influence Ever Be "Undue" Influence?

Jeffrey G. Sherman (Chicago Kent) has published Can Religious Influence Ever Be "Undue" Influence?, 73 Brook. L. Rev. 579 (2008).  Here is the Conclusion:

Courts and legislatures have, for centuries, been wary of bequests to religious organizations or leaders. Concern that such bequests reflected merely the deathbed fears of the faithful manipulated by the clergy led legislatures to enact mortmain statutes. But such statutes were not only unworkable; they sometimes invalidated perfectly genuine religious bequests. The law of undue influence remains a worthy tool for ensuring the legitimacy of such bequests, but it can best serve as protection if relationships between testators and their spiritual advisors are deemed to be per se confidential. Such a per se rule, which recognizes the extraordinary power of religious influence (for good and for ill), would allocate more sensibly the risks of nonpersuasion. Under it, the proponent of the will, after the contestant presented evidence of a “suspicious circumstance” such as a substantial bequest in favor of the influencer, would have the burden of producing evidence that the bequest represented the testator's actual wishes.