JANUARY 5, 1998 VOLUME 5, NUMBER 27
What constitutes “undue influence” such that a will is invalid? While disinherited family members may feel that their deceased relative was subjected to undue influence, the level of influence required is very high, as a review of the leading Arizona cases will show.
Gus Fotopulos was a “rollicking, roistering, heavy-drinking woman-chaser,” and owned a bar in Phoenix. One of his employees, Irene Parrisella, was also one of his girlfriends. He was chronically ill, but was suddenly admitted to the hospital one day with massive internal bleeding. While there, he asked Parrisella to contact his lawyer about his will.
Parrisella called Fotopulos’ lawyer and dictated the terms of his new will, which was to leave everything to her. Shortly thereafter, Parrisella’s mother picked up the will from his attorney’s office and delivered it to the hospital. Two nurses witnessed the signing. Fotopulos died a few days later.
Fotopulos’ brothers contested the will, alleging that Parrisella had exercised undue influence. They introduced testimony to the effect that she had tried to keep one brother from staying with Fotopulos during a visit to Phoenix. Parrisella had also tried to get Fotopulos to actually marry her on several occasions, but he had always said that he was paying her to work for him and if she didn’t like the arrangement she could leave.
At the jury trial, Parrisella was held to have unduly influenced the execution of the will. Despite the fact that Parrisella had been instrumental in securing the new will, the Supreme Court reversed that holding, saying that there was no evidence of undue influence. Parrisella v. Fotopulos, Ariz. Sup. Ct., 1974.
Dante Accomazzo had a daughter (Eda) by his first marriage and another daughter (Elaine) by his second wife. After his death Elaine sought to invalidate his will, which left her $100. She argued that Eda had joined forces with Accomazzo’s third wife to slander her repeatedly, and had convinced Accomazzo that she was not his daughter.
The Court of Appeals upheld the will, finding that the evidence only tended to show that Eda “had the opportunity to make and did make to the testator, her father, derogatory statemens about appellant’s mother and questioned the legitimacy of appellant.” That did not amount to undue influence. Miller v. Western Farms, Ariz. Ct. App., 1972.
In the principal Arizona case finding undue influence, the evidence is particularly strong. Cleyburn McCauley induced Bond Sneed Denson to divorce her husband by falsely telling her he was separated from his wife. Shortly thereafter, McCauley suffered a sort of seizure, during which he claimed to have a message for Denson from someone in heaven. When Denson’s ex-husband successfully argued that he should have custody of their daughter (primarily because of her cohabitation with McCauley), McCauley told her that her own mother had bribed the judge and jury to take away her daughter.
In addition to these misrepresentations, McCauley also took financial advantage of Denson. He induced her to challenge (unsuccessfully) a trust established for her by her second husband as part of the divorce proceedings. He also conspired with a friend to have Denson’s funds misused for modification of a residence for the couple. In the words of the court, through a pattern of deception and misrepresentation McCauley “evidenced a preconceived, deliberate and continuing scheme, device, plan and artifice” to defraud Denson.
After McCauley and Denson were married, he arranged for her to execute a new will. When she died shortly thereafter (she had been chronically ill and signed the will while in the hospital), the will was found to be the result of undue influence. Estate of McCauley, Ariz. Sup. Ct., 1966.