Posts Tagged ‘“confidential relationship”’

Wills Usually Are Valid, and Not All Family Influence is “Undue”

JUNE 23, 2003 VOLUME 10, NUMBER 51

Occasionally a successful and colorful will contest is profiled in Elder Law Issues. EL Issues reported in 1996 that Dorothy Killen’s will was deemed invalid in an Arizona court due to Ms. Killen’s “’insane delusions’” about her truly kind relatives she believed to be Mafia killers. (May 27, 1996) And, last year EL Issues described how the Mississippi attorney who prepared “Doc” Evans’ will could offer no testimony about his client’s wishes or capacity since the attorney had never met his client. “Doc” Evans’ will was held to be invalid because it appeared that he was unduly influenced by a friend involved in his business affairs. (Dec. 2, 2002)

The Wisconsin will contest of Horlacher v. Drexler is far more typical of the majority of will contests — it was unsuccessful and fueled by dark family dysfunction.

Zoura Drexler of Walworth County, Wisconsin, properly executed a will that left her entire estate to one of her children and specifically excluded her only other child. The trial court found that Mrs. Drexler had mental capacity and that she had not been subjected to undue influence when she signed the will.

Barbara Horlacher, the excluded child, appealed the trial court’s ruling regarding her mother’s capacity. Mrs. Drexler’s physicians, the attorney who drafted her will, a neighbor and her cleaning lady had all testified that Mrs. Drexler was competent to sign her will.

The only evidence that Barbara presented at trial was the testimony of a medical expert who reviewed the medical records but who had never examined, treated or met Mrs. Drexler. Barbara also challenged the trial court’s finding that Albert, the son who inherited the estate, had not exercised undue influence over his mother. The appellate court affirmed the trial court’s finding that although Albert had a “confidential relationship” with his mother based on the fact that he was named as agent in her financial power of attorney, he used the power “very, very carefully, very scrupulously, very infrequently and for very minor matters.” Thus, no suspicious circumstances surrounded the confidential relationship between Albert and his mother. Although Barbara attempted to introduce into evidence Albert’s psychiatric treatment records, this evidence was deemed inadmissible for lack of relevance. Wisconsin Court of Appeals, District II, May 7, 2003.

Horlacher v. Drexler reminds us that family members influence each other frequently, and that not all influence is undue or “overpowering.” This scenario likely would have led to the same result in Arizona and most other states.

Unsuccessful Challenge Costs Claimant And His Attorney


Despite the popular notion that it is easy to attack a decedent’s estate plan, successful challenges are actually quite rare. It is seldom possible to mount a challenge just because the decedent’s plan seems unfair, or because the decedent “always wanted” some other distribution. In fact those who challenge estate plans sometimes do so at their own peril.

When Nannie Mae Ross died in Mississippi in 1998, she left three certificates of deposit at a local bank. All three CDs named her son Tony Ross as joint tenant with right of survivorship, so that all her assets transferred to him automatically on her death. The CDs totaled a little less than $100,000 in value.

Mr. Ross was not his mother’s only child. His sister Maxine Morris had died in December, 1997. Ms. Ross had lived with her daughter until the daughter’s death. During the thirty years that mother and daughter lived together, Ms. Ross had named Maxine Morris’ as joint tenant on some or all of the Certificates of Deposit she owned. After her daughter’s death Tony Ross moved in with and helped take care of Ms. Ross, and within a few weeks of his arrival she had made the changes in her bank accounts.

After Ms. Ross’ death Maxine’s son Rodney Foster challenged the joint tenancy accounts. His basic argument: those accounts were originally supposed to go to his mother and the most likely explanation for the change must be that Mr. Ross unduly influenced Ms. Ross to place the accounts in joint tenancy.

Mr. Foster pointed to a well-established legal principle that could have shifted the burden onto his uncle to show that he had not unduly influenced Ms. Ross. If Tony Ross was acting for his mother, including helping her out with her finances, he might have been found to be in a “confidential relationship” with her, and any change in her estate plan would have created a presumption of undue influence. The problem with that argument was simple: both Tony Ross and Rodney Foster testified that Ms. Ross was “fiercely independent” and strong-willed.

After Mr. Foster put on his case the trial judge dismissed his claim. He also charged Mr. Foster $5,086.02 in attorney’s fees to be paid to Mr. Ross for what the judge decided was a frivolous lawsuit. And, just to make the point clear, the judge ordered Mr. Foster’s attorney, Danny Lowrey, to pay the opposing attorney’s fees if Mr. Foster couldn’t do it himself.

Both Mr. Foster and his attorney appealed. The Mississippi Supreme Court, however, agreed with the trial judge. There was no substantial justification for the lawsuit, ruled the Court, and Mr. Foster should have known that before he pursued the litigation. In fact, said the state’s high court justices, any reasonable attorney would have seen that there was no claim to be made and refused to bring the action. Challenging a decedent’s estate plan can be not only difficult, but costly—including the costs incurred by the heirs or distributees. Foster v. Ross, January 10, 2002.

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