OCTOBER 20, 2014 VOLUME 21 NUMBER 38
We often say that experienced lawyers can be pretty good at judging the competence of a client to make a will, sign a power of attorney or execute other documents. We (collectively) probably make better witnesses on those questions than even the doctors and medical staff attending to their patient (our client). Why? Not because we have better medical training — we obviously don’t. What we are better at is applying the legal tests of capacity to the person we meet with. “Can you name your family members?” and “What do you think a will is designed to do?” are questions that just don’t come up in most medical interviews.
What we are less good at, though, is recognizing undue influence. Of course we know the markers (social isolation, big changes in estate plans, active involvement by the person benefiting from the change, etc.), but we don’t see the daily interaction between our clients and their family members. That can make it easy for us to miss the significance of the influence brought to bear on our clients, even if we are vigilant and familiar with the circumstances and possibilities.
That concept was brought home this week while reviewing a recent California Court of Appeals case. Two brothers disputed the validity of a series of documents their mother had signed, and all were prepared by lawyers after close questioning by each. The two lawyers heard very different stories, and within days or weeks of one another. How could this have happened, and was there a way to avoid it in other cases?
The California case, Bellows v. Bellows (October 9, 2014), is an “unreported” decision. That means that it can’t be cited as a precedent in other, similar cases — but it doesn’t change the validity of the appellate court’s holding. That holding: the most recent documents signed by the mother were valid, at least partly because the contesting brother could not meet his burden of proving otherwise. But the story of battling lawyer visits was more poignant than the ultimate court holding was significant.
The saga began in 2002, when Ms. Bellows’ brother became ill. Her son Fred helped her deal with her brother’s illness, need for care, and ultimate death — and even the probate of his estate. After she inherited about $400,000 from her late brother, she and Fred visited her attorney about estate planning, and her stockbroker about setting up an account to hold the inherited money.
Ms. Bellows’ will and trust had previously provided for an equal division between her two sons, Fred and Donald. The upshot of the meetings with lawyers and stockbrokers was that Fred would inherit all of the money that Ms. Bellows had received from her late brother, and the balance of her estate would be divided equally between Fred and Donald.
It is worth noting that Fred went with his mother to most or all of her meetings with her stockbroker and her lawyer, though her lawyer took care to discuss her wishes in a separate session without Fred in the room. Her lawyer was certain that the changes she requested were her wishes, and that she was not being unduly influenced by her son.
About six months after those changes were completed, Ms. Bellows visited another lawyer — this time in the company of her other son, Donald. The new lawyer began the process of reviewing her existing estate planning documents, and considered her request for a change in the disposition she had planned. That new lawyer wrote to the lawyer who had prepared Ms. Bellows’ earlier documents, requesting a copy and more information.
The day after that meeting, Ms. Bellows was back in the original lawyer’s office with her son Fred. She told the first lawyer that she did not want to make any changes, and that she did not want to deal with the new lawyer any further. The first lawyer wrote to the new lawyer to tell her not to take any further action.
Nonetheless, Ms. Bellows was once again in the second lawyer’s office two days later. She signed a new power of attorney naming Donald as her agent rather than Fred, and she amended her trust to provide for equal distribution of all of her assets, including the inheritance she had previously earmarked for Fred. The second lawyer later testified that she was clear about her wishes, not being directed by Donald and could express her own wishes without any hesitation.
Shortly after those changes were made, the first lawyer visited Ms. Bellows at her apartment. She told him that she wanted Fred, not Donald, as her agent, and the lawyer prepared yet another power of attorney for her to sign. Since the beneficiary designation on the account holding her inheritance had never actually been changed, the first lawyer made no further changes.
When Ms. Bellows died three years after that sequence of events, the two brothers fought about whether there had been undue influence. Each pointed to the interviews their mother had had with the lawyers as evidence that the other had acted inappropriately. As the Court of Appeals noted, each of those two lawyers “apparently thought they were helping [her] resist improper pressure from the other brother.”
As noted in the introduction, the upshot was that the beneficiary designation favoring Fred was upheld, though mostly on the basis that Donald had not met his burden of proving undue influence in order to set it aside. But the real lesson, it seems to us, is that two lawyers — who we will assume (as the Court of Appeals did) were both well-meaning — could hear such different stories within days of one another.
What might either of those lawyers have done differently, in order to help make Ms. Bellows’ wishes clear? It is a challenge, but we have some ideas we follow:
- Never start a client meeting with the family — meet first and alone with the client. If either lawyer could have said that they took no direction from either of Ms. Bellows’ sons, it would have been more powerful defense of their position. Who knows what she might have said if there was no opportunity for prompting or direction? A visit without either son present is good, but perhaps it should be clearer that neither son should have been actively involved at all.
- Outside information might have been helpful to judge the effect on the client. The record is not clear as to whether either attorney asked for information from doctors, social service workers, psychologists, caretakers or others about Ms. Bellows’ daily life, and how susceptible she might have been to direction from others (including either or both of her sons).
- Once such clear conflicts have been exposed, it’s time to step up the efforts to eliminate inappropriate influence. If, as the Court of Appeals suggested, the two lawyers each thought they were protecting Ms. Bellows from the other lawyer and the brother who was seen as the “real” motive force, perhaps they would both have served Ms. Bellows better if they had discussed their different views, figured out a way to reconcile them, and give Ms. Bellows the peace of mind that her wishes were in place and would not be changed at the insistence of either son. After all, Ms. Bellows’ peace of mind should have been a primary goal of her representation.