AUGUST 23, 1999 VOLUME 7, NUMBER 8
Vanessa Henningfeld first met 71-year-old George Milas when she visited his Wisconsin home to sell him a long-term care insurance policy. The two of them quickly became friends.
Mr. Milas had a number of problems to deal with. He had a heavy Lithuanian accent that made it hard for people to understand him. He was also beginning to experience problems with his memory, and he needed help managing his finances. His second wife was divorcing him, and he had legal proceedings to deal with.
Ms. Henningfeld, 35, promptly began assisting Mr. Milas to deal with all of those problems. About four months after they first met, she called his lawyer, made an appointment and accompanied Mr. Milas to the lawyer's office to make a new will and power of attorney. The will, executed in 1988, disinherited his two adult children (who had been named in his earlier will) and left everything to Ms. Henningfeld. He also signed a power of attorney giving her control over all his finances.
Over the next year, Ms. Henningfeld took charge of Mr. Milas' affairs. She managed his divorce proceedings, attended all meetings with his lawyer, tried to keep the lawyers on both sides out of the settlement discussions and generally interfered with the court process. She even filed a complaint against Mr. Milas' lawyer with the Board of Attorneys' Professional Responsibility.
A year after he made the will leaving his estate to Ms. Henningfeld, Mr. Milas visited his lawyer's office without her present. He took the 1988 will, drew a line through it and wrote at the bottom that he revoked it. Ms. Henningfeld remained in his life, however.
Five years later, Mr. Milas suffered a stroke. Shortly after that, he signed another will leaving his entire estate to Ms. Henningfeld. He died three years after signing the new will.
Ms. Henningfeld filed the last will for probate with the Wisconsin courts. It was found to be invalid because of Mr. Milas' susceptibility to undue influence and Ms. Henningeld's actions taking advantage of that susceptibility. Ms. Henningfeld then offered the 1988 will for probate, arguing that Mr. Milas was not unduly influenced when it was executed, and that his revocation of that will was invalid.
The court refused to admit the earlier will, as well, but Ms. Henningfeld appealed. The Court of Appeals heard Ms. Henningfeld's appeal and ordered the trial judge to reconsider; at the second trial, the 1988 will was upheld and Ms. Henningfeld once again was to receive Mr. Milas' property. This time his daughters appealed.
On the second trip to the Court of Appeals, the result was reversed again. The Court ruled that there was at least slight evidence of Mr. Milas' susceptibility to undue influence; since there was clear and convincing evidence of Ms. Henningfeld's disposition and opportunity to unduly influence Mr. Milas, and since she obtained her desired result, his susceptibility to undue influence could be inferred from the slight evidence presented. Estate of Milas, August 19, 1999.
Although Wisconsin law imposes a four-part test for undue influence, Arizona's approach is to list seven elements which might suggest the existence of undue influence. Both states require evidence of undue influence to be shown clearly and convincingly; because such influence is usually exerted in secret, both recognize that the evidence will often be shown by inference, rather than direct evidence.