New Will, Signed While Dying In Hospital, Ruled Invalid


Grace Gillespie may have seemed to be a lucky woman. After all, she had won $2,000,000 in the lottery. In 1992, however, she was admitted to a Phoenix-area hospital for treatment of pneumonia and lung cancer; doctors quickly determined that her condition was terminal.

Ms. Gillespie had previously signed a Will leaving her estate in equal shares to her three children and her mother. The one-quarter share set aside for her mother would be distributed, upon her death, to Ms. Gillespie’s nieces and nephews. Ms. Gillespie had also executed a durable power of attorney the year before, giving her son James authority to handle her affairs.

As Ms. Gillespie lay dying in her hospital bed, James arranged for his own lawyers to prepare a new Will and power of attorney for his mother’s signature. Six days before her death, he presented them to her at her bedside, telling her that the power of attorney would allow him to continue to pay her bills and feed her pet cockatiel. The Will, he told her, would divide her estate into three equal shares, one for each of her children.

In fact, the Will prepared by James’ lawyers left most of Ms. Gillespie’s estate to a trust established by James. Furthermore, the Will forgave part of a debt owed by James’ company to Ms. Gillespie and left her Lexus to her daughter; the distribution was not equal, as Ms. Gillespie had been told. The trust kept her daughter’s share in trust, with James as trustee. The same day, James changed the beneficiary on Ms. Gillespie’s lottery winnings from the three children to the trust he had created.

On the day of Ms. Gillespie’s death, James amended the trust so that her other son’s share would also remain in the trust after her death.

Ms. Gillespie had not asked for a new Will to be prepared. At the time of her signature, she was sedated and on a ventilator, and could only nod her agreement to her son’s description of the new Will. Her signature demonstrated her diminished physical capacity.

The Arizona Supreme Court reviewed the estate plan prepared by James, and determined that it was not Ms. Gillespie’s plan. Although Wills may normally be challenged only when the signer is incapacitated, or when the signature is the product of undue influence, the Court in this case ruled that Ms. Gillespie’s signature was simply invalid. Since she had not read the documents nor had them read to her, and since James misrepresented their terms to her, the Court ruled that she had not effectively signed the Will. Thus, the Court sidestepped the issue of Ms. Gillespie’s capacity and simply determined that the document was James’ will, not Ms. Gillespie’s Will. Estate of Gillespie, Arizona Supreme Court, September 14, 1995.

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