Posts Tagged ‘amendment’

Claimant Must Prove Undue Influence, Lack of Capacity

AUGUST 27, 2012 VOLUME 19 NUMBER 33
It has been some time since we wrote about the concepts of undue influence and lack of testamentary capacity — and the differences between these two legal concepts. A recent Minnesota appellate case strikes us as a good opportunity to revisit challenges to wills and trusts based on allegations of mental shortcomings.

Linda Samson (not her real name) was a widow, living in her own home in Minnesota. She had two children, a son and a daughter. She and her late husband had created a living trust several years before her husband’s death; it provided that after the second spouse died, the remaining estate would be divided into three shares. One share would go to the couple’s daughter, another to their son, and the third to their son’s wife.

In 2003 Linda was diagnosed with “early-state Alzheimer’s disease.” In 2006 she signed an amendment to her trust deleting both her daughter and daughter-in-law (and leaving everything to her son). In 2008 she signed two deeds to her home — one transferred her home out of the trust and into her name alone, and the second one transferred her home from her name into her son’s name (but reserving a life estate for herself).

Between her initial Alzheimer’s diagnosis and 2008 Linda’s medical records periodically referred to her memory loss but indicated that she was stable. She continued to live at home, though with some assistance. She had a sharp mental decline in the summer of 2008, and by fall of that year a home health agency was recommending 24-hour care. She moved into a nursing home in the spring of 2009, was enrolled in a hospice program and died in June of that year.

Linda’s daughter objected to the 2006 amendment to Linda’s trust and to the 2008 transfer of her home. She argued that her mother lacked the capacity to sign either of those sets of documents, and/or that her brother must have unduly influenced their mother to his own benefit (and her detriment).

The probate judge heard testimony from several people who knew and/or treated Linda. Two expert witnesses hired by her daughter, both doctors, had reviewed Linda’s medical records but had never met her. They testified that her capacity was obviously diminished, and that it would have been possible to unduly influence her.

On the other side, the lawyer who prepared the trust amendment and the deeds to her house testified that, though he had not met his client before, she seemed to be able to explain her reasoning for the changes and she knew who her children were and what she was doing. He testified that she had told him that it saddened her that her daughter was not very involved in her life, but that she was pleased at the extra care and attention she received from her son and his son, her grandson.

Both the initial and the follow-up sets of appointments with the lawyer had been arranged by Linda’s son, but in both cases (he testified) it was at her request. Although the lawyer had met with both Linda and her son initially, further discussions were with Linda alone; the transfer of the house had actually been initiated by the lawyer rather than either Linda or her son. The lawyer pointed out that it didn’t really change the disposition of her estate at all, since Linda’s son was already the sole beneficiary of her trust estate.

There was one odd moment, according to the lawyer’s testimony. During one of the interviews with Linda he sought to establish that she knew her family members and the relationships (a key part of the standard for determining testamentary capacity). When he asked Linda about her daughter, she said that she was sorry that they were not closer, that the daughter was on her third husband (in fact, her husband had just died), and that her daughter had suspected that she, Linda, had had an affair with the husband. When the lawyer expressed surprise and asked follow-up questions, Linda dismissed the idea and said she had gotten confused; that had been the plot of a biblical story she had read.

After trial, the probate judge ruled that Linda’s daughter had not proven that her mother lacked testamentary capacity OR that her brother exercised undue influence. The judge noted that the supporter of questioned documents has the burden of proof that the documents were executed properly. After that, though, the contestant of a will or trust has the burden of proving allegations of undue influence or lack of testamentary capacity. Linda’s daughter introduced testimony that there could have been undue influence, and that Linda’s capacity might be suspect — but her burden had been to prove that there was undue influence, or that Linda actually did not understand what she was signing.

The Minnesota Court of Appeals agreed, upholding the probate judge’s ruling. The appellate judges had the same understanding of the burden of proof, and saw no reason to set aside the probate judge’s findings. Linda’s last trust changes, and the transfer of her home to her son, were both upheld. In the Matter of the Smith Living Trust, August 20, 2012.

This Minnesota case is not the most eloquent on the subject, and of course it would have little or no precedential value in Arizona. The opinion is also “unpublished,” which means that the Minnesota Court of Appeals decided that it should not be cited as precedent even in Minnesota itself. Still, there are several reasons we like the decision and call attention to it here:

  • It is a nice exposition of the “burden of proof” issue, pointing out that many will and trust contests lose not because the proponent of the document prevails but because the contestant fails. Generally speaking, the person who challenges a will, trust, deed or other estate planning document has to overcome the presumption that the signer was competent and knew what he or she was doing.
  • It describes the sorts of things a good lawyer should do to protect the validity of documents he or she prepares. The lawyer met with Linda alone (we would have liked it even better if he had never met with Linda and her son together, but at least he dealt primarily with Linda directly), the deed change was prompted not by Linda’s son but by the lawyer himself, the lawyer could testify that he routinely took steps to assure that his clients are competent and aware of what they are doing.
  • On the other hand, the contestant had to rely, as is often the case, on inference and reconstruction. The contestant’s two expert witnesses had never met Linda, and their opinions were consequently guarded (they said that she was susceptible to undue influence, but they could not testify to the extent of any influence they might suspect).
  • Perhaps most importantly, the opinion makes clear that even someone with a long-standing diagnosis of dementia might still be able to sign estate planning documents. Testamentary capacity (the ability to sign a will) is not immediately compromised by virtue of a dementia diagnosis; Linda had carried her diagnosis for several years but still had the capacity to understand the nature of her trust change, to identify her family members and to describe what assets she wanted to pass to her son. The fact that she had one episode of fairly serious confusion did not prevent her from signing her new trust.

Amending Your Will–Caution: Do Not Try This At Home

FEBRUARY 20, 2012 VOLUME 19 NUMBER 7
OK — you’ve signed your will and paid the big lawyer’s fee. Now you want to make a change. Do you know how to modify your will? Can you do it without incurring another fee? Shouldn’t it be easy to make the change?

All that might have been going through Donald Wolf’s mind when he made changes back in 2005. You see, he had written a clearly valid will in 1995. In it, he left half of his estate to a married couple who had been long-time friends. A quarter of his estate was to go to another friend, and the final quarter to a fund to assist AIDS patients. He named the wife of the married couple as his personal representative. Then he gave an unsigned copy of the will to the woman named as personal representative.

In 2005, when he was thinking about making a change, Mr. Wolf talked with the couple to whom he was leaving half of his estate. Then he took THEIR copy of his will, crossed out the bequest for AIDS patients and wrote that instead that quarter of his estate would be divided between two other friends. He dated and initialed the changes, but no one signed as witnesses. At some point — perhaps during that same meeting, but his friends could not clearly recall — he did the same thing on the signed original will, as well.

Was Mr. Wolf’s will amendment effective? We’ll give you a minute to think about it, and try to decide what you think. Wait — we’ll give you one more clue: the probate court decided that the attempt to amend his will was ineffective, and ordered that the AIDS fund was still a one-quarter beneficiary.

One of the two friends named in the hand-written amendment appealed the probate court’s decision, and the Arizona Court of Appeals reversed the finding. Arizona permits “holographic” wills and amendments; if the material provisions of a will are in the decedent’s handwriting, they do not need to be witnessed. The appellate court decided that Mr. Wolf’s amendment was a holograph, and that it should be given effect. Estate of Wolf, February 7, 2012.

Back to our original questions: assuming you want to change your will, does the Wolf case stand for the proposition that it is as easy as taking your original will out, scribbling the changes, initialing and dating (which Mr. Wolf did) and putting it back away? Emphatically, NO. Here are some reasons why you should NOT use Mr. Wolf’s method for changing your will:

  1. You might live in, or move to, a state where holographic wills are not permitted. Not every state in the U.S. allows holographic wills and codicils, and they are disfavored in other jurisdictions — even in English-speaking countries, where the idea was once embedded in English law. Even where they are permitted the rules vary. It is never a good idea to rely on a holographic will, codicil or amendment.
  2. Even if the handwritten notes are admitted as part of the will, the intent and meaning is usually subject to interpretation and confusion. Is it possible that Mr. Wolf was making notes about possible changes that he meant to discuss with his lawyer — but never got around to completing? Apparently not, but very slight differences in testimony can lead to significant differences in result.
  3. Holographic documents are much more likely to result in litigation — and in delay and additional cost.
  4. The cost of making changes in your will is usually surprising slight. Go ahead — ask the lawyer who prepared your will how much he or she will charge for making changes. You are likely to be surprised at the answer. Why would it be inexpensive? Because a significant part of the cost of preparing your estate plan comes from the time it takes to understand your assets, family situation, goals and intentions. Much of that has already been done, and so amending your will is likely to cost quite a bit less than the original cost of preparing the will. That is true even though most lawyers would rather simply write a new will than prepare an amendment or codicil.
  5. There is a side benefit to meeting with your lawyer to amend your will. Laws change, your situation changes, the world changes — and your lawyer can point out things you ought to be thinking about in addition to the changes you want to make. In fact, you should be visiting with your lawyer once every five years or so — more if your situation is more fluid, or your assets are significant — just to see if you need to update documents.

Attorney And Innocent Client Killed Over $100,000 Will Error

MARCH 22, 1999 VOLUME 6, NUMBER 38

Walter V. Shell, a 71 year old man from Johnson City, Tennessee, blamed attorney John D. Goodin for a mistake in Shell’s ex-wife’s will. Last Thursday Shell tracked the lawyer down and shot him in the head.

Lawyer Goodin, 81, was a well-known lawyer in Tennessee. He had been in practice in Johnson City for sixty years, and had served as a city judge for five of those years.

In addition to Goodin, Shell shot and killed Paul S. Keyser, III. According to police, Keyser, 35, was a client of Goodin’s and had no connection to Shell or his wife’s estate. Apparently, he was simply an innocent bystander when Shell took his revenge.

Shell was divorced from his wife, Katie Roselle Shell. Nonetheless, the two had remained friendly, and Ms. Shell had even named her ex-husband as executor in her will. Then, last November, she contacted Goodin about changing that will.

Goodin had visited Ms. Shell in the hospital on November 9, and had prepared an amendment for her to sign. In the amendment, she named a friend as her executor, rather than Mr. Shell. The amendment also provided that some property and money would go to Mr. Shell, and some to their two grown daughters. Finally, it directed that any remaining money be given to Mr. Shell.

Ms. Shell owned about $100,000 worth of stock, which was not specifically mentioned in her will or the amendment. After her death, the couple’s two daughters argued in probate court that her stock was not “money.” When the probate judge agreed with that interpretation, it meant that the will did not provide for disposition of her stock, and it therefore went to her daughters, who were her next of kin.

Mr. Shell blamed attorney Goodin for the ambiguity in his ex-wife’s will, and for the resultant loss of the stock. Apparently, that was his motivation for killing Goodin. After the killings Mr. Shell turned himself in to the police, and he has now been charged with two counts of first-degree murder. He is currently being held in jail without bond.

Ironically, Goodin was interviewed about his plans for retirement in 1984, when he was 66. At the time, he told the Johnson City Press that he had no plans to retire because he was “addicted” to his work. “I’ve known very few lawyers who had the guts to quit when they should,” he told the newspaper then. “I hope I have sense enough to retire or quit before I become a liability to anybody that comes in to get me to represent them.”

Assuming that Ms. Shell really intended to include her stock in the bequest to her ex-husband, it would have been easy to prevent the incorrect legal result. Sometimes, in the desire to list and dispose of individual assets, it can happen that no provision is made for unidentified property. Any well-drafted will should include a “residuary devise,” indicating where any remaining property should go. Such a provision takes care of property which might be overlooked, acquired after the will is written or improperly described in the will itself. By saying “I leave all the rest of my estate to Walter Shell,” Ms. Shell could have ensured that her stock certificates would go to her ex-husband.

In probate proceedings, it is generally the goal of the court to determine and effect the decedent’s true wishes. Sometimes, however, technical failures can lead to unintended results. Having a lawyer draft the will should, but does not always, prevent errors such as the one in this tragic case.

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