Jury Finds Undue Influence, Mistake In Will Of 86-Year-Old

APRIL 19, 1999 VOLUME 6, NUMBER 42

Carmen Herbert was 83 when she injured her leg in a golf car accident. She was treated at a local hospital, and then released to the Laniolu Convalescent Home in Hawai’i. A few days later, she was diagnosed with “chronic non-healing leg ulcers and organic brain syndrome.” Two days after that, she signed a will, leaving about $1.5 million to the First Church of Christ Scientist in Honolulu. A few days later, she signed a power of attorney giving two friends authority to handle her affairs.

Ms. Herbert returned to her home after her short stay in the nursing home. She employed a live-in housekeeper to help at home. Increasingly, she relied on the help of Hanno Soth, a 26-year-old Canadian citizen who had befriended her. In fact, in December of 1989 Ms. Herbert signed a revocation of the power of attorney she had given to her friends, executed a new power of attorney in favor of Mr. Soth and, finally, signed a new will leaving the bulk of her estate to Soth.

When Ms. Herbert died six months later, Mr. Soth filed her 1989 will with the Hawai’i probate court. The First Church of Christ Scientist objected, alleging that he had executed undue influence on Ms. Herbert, that she was incompetent at the time she signed it, and that she did not know the contents of the will when she signed it. The issue was submitted to a jury after a month-long trial and three days of deliberation, a jury decided that the will was invalid.

Mr. Soth appealed, first to the Hawai’i Court of Appeals and then to the Hawai’i Supreme Court. Last month, the state’s high court agreed with the jury, and ordered that the will not be admitted to probate.

In its review of the Herbert case, the court noted that the live-in caretaker had testified that Ms. Herbert’s memory had deteriorated after her release from the nursing home. She also described Soth as “cunning, calculating, and secretive,” though the court ruled that the jury should not have heard her opinion of Soth’s character.

The jury had also heard testimony about Soth’s immigration status (he had been served with a deportation notice the day before filing his probate petition, in which he alleged that he was a resident of Hawai’i), his future plans (before Ms. Herbert’s death he had planned to leave Hawai’i to attend law school, despite telling people he would stay and care for Ms. Herbert) and the possibility that Ms. Herbert was romantically interested in Mr. Soth (one witness testified that Ms. Herbert and Mr. Soth were seen holding hands and acting “lovie-dovie”).

In support of the 1989 will, Mr. Soth had produced testimony from several friends of Ms. Herbert, her financial advisor, Mr. Soth’s girlfriend (who testified that Ms. Herbert was fully aware of her relationship with Mr. Soth) and one of her physicians. Although the appellate court reviewed all that testimony, it found that there was sufficient evidence to support the jury’s finding that the will was invalid. Estate of Herbert, March 17, 1999.

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