NOVEMBER 7, 2011 VOLUME 18 NUMBER 38
A woman has been diagnosed as suffering from dementia of the Alzheimer’s type, and she resides in an assisted living facility. She has short-term memory loss, is frequently forgetful and has difficulty with tasks like playing cards and operating her television set. Can she sign a new will?
That is the legal question posed by Clara Marsh’s will, which she wrote out in longhand and signed in 2006. Ms. Marsh died two years later, and her son and daughter ended up in a legal battle over whether the will was valid.
To be more precise, Ms. Marsh’s will actually presents two related but independent legal questions. First: was she competent to sign the will on the day she did? Second: if she was competent, did her son and daughter-in-law exert undue influence on her in connection with the new will?
A brief background is in order. Ms. Marsh had a 1996 will that left everything equally to her two children. When she moved into a condominium in 2003, she wrote to the children telling them that she intended to leave her new home to her son Richard. He had helped her with the purchase, and she explained to the children that she had placed her new home in joint tenancy (with right of survivorship) with Richard. She did not, however, sign a new will at that time.
In 2006 Ms. Marsh moved to an assisted living facility, and the condominium was sold. The proceeds from that sale then became a bone of contention between her son Richard and her daughter Elaine Grayson. Richard thought the proceeds should be put into an account in his and his mother’s names as joint tenants; Elaine insisted that the proceeds be placed in an account in Ms. Marsh’s name alone.
As the two siblings (and their respective spouses) debated how to handle the sale proceeds, Elaine’s husband John filed a guardianship petition. He alleged that Ms. Marsh had Alzheimer’s disease and dementia. Richard opposed the guardianship petition, and the relationship between the two couples deteriorated.
A month after the guardianship was filed Ms. Marsh prepared a one-paragraph will in her own handwriting. It said:
Because of all the legal problems Elaine and John are causing, I am afraid my final wishes will be ignored. To prevent this from happening, this is my new will: I leave everything to my son Richard and his wife Sam. I love you all very much.
This new will was witnessed by Ms. Marsh’s priest and the church secretary. She apparently did show it to Richard shortly after she signed it (he says he told her to “hide this someplace” and think it over), but she did not share it with Elaine or her husband John.
After Ms. Marsh’s death in 2008, Richard filed the handwritten will with the Ohio probate court. Elaine objected, arguing that (a) Ms. Marsh had been incompetent at the time of the will’s signing, and (b) Richard and his wife had exerted undue influence over Ms. Marsh to get her to disinherit Elaine. The probate court granted summary judgment to Richard, thereby dismissing the objections raised by Elaine.
The Ohio Court of Appeals agreed with the probate court on the first issue, but sent the dispute back to probate court for further proceedings regarding the undue influence count. Despite a diagnosis of dementia, and despite forgetfulness and confusion, the appellate court agreed that Ms. Marsh appeared to understand the things needed to make a valid will. She knew who her children (and in-laws) were, and even though she may not have known the precise nature of her assets she did understand what was involved with her estate. She knew she was making a will, and the effect of doing so. Summary judgment was appropriate on the question of her legal capacity to sign a will. Despite her limitations, despite her diagnosis and despite her living situation, she was able to make her new will.
But it still might be possible to show that she was subjected to undue influence, and the appellate court took pains to distinguish the two concepts. Undue influence, the court noted, is not the same as general influence — even “strong and controlling” influence. To be “undue,” influence must be so pervasive and effective as to result in the document reflecting the wishes of the influencer and not those of the signer. That is a high barrier for a will challenger to cross, but Elaine should be given a chance to introduce evidence to support her claim, ruled the Court of Appeals. In Re Estate of Marsh, October 28, 2011.
Other than the obvious (“don’t exercise undue influence over seniors”), what lessons can we take from Ms. Marsh’s story to guide our actions when working with seniors like her? We might submit a couple for your consideration:
Don’t forget that, while you and other family members dispute how best to handle the senior’s finances (or life), he or she may have some strong opinions and may actually feel affected by your decisions, arguments and tactics.
“Winning” may not be as important in family disputes as figuring out a way to get along. The cost of this particular dispute: thousands of dollars in legal fees, irreparable damage to family relationships and (and not least) psychic injury to the individual everyone was trying to protect.
Family disputes are sometimes about the best interests of a vulnerable family member, sometimes about dollars, sometimes about pride, and sometimes about control. In our professional experience, those last are often the most difficult ones to resolve.
A Florida court found Alvarado Kelly incompetent in 1960, and appointed a guardian to manage his property. Fifteen years later Mr. Kelly moved to a facility in Mississippi operated by Sarah Cuevas; he lived in that facility until his death twenty five years later. After his death Mr. Kelly’s brother William and Ms. Cuevas became embroiled in a legal dispute involving the courts of both states.
Mr. Kelly had signed a will while he lived in Mississippi, and he had named Ms. Cuevas as executrix (what we in Arizona would call “personal representative”). Shortly after his death Ms. Cuevas filed the will for probate with the Mississippi courts, gave notice to William Kelly as the next of kin, and secured a court order appointing her as executrix and finding the will to be Mr. Kelly’s valid will.
William Kelly then filed a proceeding in the Florida courts. He acknowledged that there had been a finding in Mississippi, but he argued that it was invalid both because he had not actually participated and because his brother had never been a resident of Mississippi.
William Kelly argued that since his brother had been adjudged incompetent and the Florida courts had never given specific permission for him to relocate to Mississippi, he remained a resident of Florida for the rest of his life. He also insisted that the will was invalid because Ms. Cuevas had exercised undue influence.
Ms. Cuevas filed a motion to dismiss the Florida probate, but the Florida court agreed with William Kelly that her appointment by the Mississippi court was invalid. A Florida bank was appointed as personal representative of Mr. Kelly’s estate and authorized to collect his assets.
The Florida Court of Appeals reversed the probate court’s decision, however. In doing so, it relied partly on the U.S. Constitution, which requires the courts of each state to give “full faith and credit” to the courts of sister states in most situations.
In this case, ruled the appellate court, Ms. Cuevas had given William Kelly notice of the pending Mississippi proceedings, and an opportunity to file pleadings and present his argument that any proceedings should be in Florida. When the Mississippi court admitted Mr. Kelly’s will to probate it made a determination that he was domiciled in Mississippi; if William Kelly disagreed with that conclusion he needed to make his argument in Mississippi, rather than just filing his own proceeding in Florida. Cuevas v. Kelly, March 26, 2004.
Mr. Kelly’s probate proceedings provide an interesting illustration of the “full faith and credit” clause of the Constitution, and of its application to probate proceedings. It also demonstrates that it is unwise to ignore the proceedings in another state, hoping to later file a competing action in a more friendly jurisdiction.
December, 2005, update: In a related case in the Mississippi courts, that state’s Court of Appeals ruled that probate proceedings were proper in Mississippi. William Kelly, the decedent’s brother, had argued in the Mississippi proceedings that there was no jurisdiction for a probate there, since (he insisted) all of Alvarado Kelly’s assets necessarily belonged in Florida where he had resided when he had last been competent to select a residence. The Mississippi chancery court (where probate proceedings are tried) had ruled that it would be “impossible” to imagine that Alvarado Kelly had lived in Mississippi for thirty years without accumulating clothing or other personal items. His death in Mississippi, coupled with the existence of any assets at all, gave Mississippi courts jurisdiction over his estate, and the Court of Appeals agrees that those probate proceedings were properly initiated. In the Matter of Estate of Kelly, December 6, 2005.
It is a common problem facing lawyers and litigants. What can be done if one of the parties to a lawsuit is a minor, or an incapacitated adult? Who makes decisions about the litigation if one party lacks legal capacity to handle their own financial and personal decisions?
In many courts, the civil litigation rules permit appointment of a “guardian ad litem,” an “attorney ad litem” or a “next friend” to guide lawyers and the court itself on how to proceed. One problem with those rules, however, is that they seldom make clear how such a person is to be appointed, who would qualify or what authority they might have. A recent case in Texas illustrates the confusion.
Alejandro Saldarriaga filed for divorce from his wife Debra Ann in late 1999. Both spouses had lawyers, and the litigation proceeded for three years without resolution of child custody, child support or property division issues. Finally Debra Ann Saldarriaga’s attorney, Lin Zintsmaster, decided her client was mentally incompetent to complete the divorce.
Ms. Zintsmaster filed a motion asking for appointment of someone to make decisions about how to proceed with the divorce litigation. The judge appointed local attorney Jerry Jones to be Ms. Saldarriaga’s “next friend,” and to make decisions about how the divorce should be completed.
Mr. Jones, in turn, filed a petition for appointment as Ms. Saldarriaga’s guardian, and yet another lawyer was appointed to represent her in that proceeding. Meanwhile Mr. Jones went ahead and negotiated a resolution of the remaining child custody, child support and financial decisions in the divorce proceeding.
Ms. Saldarriaga’s doctor wrote that she was not incapacitated, and the guardianship proceeding was dismissed. Meanwhile, however, the divorce court accepted the settlement negotiated by her “next friend” Jerry Jones, and the divorce was finalized. Ms. Saldarriaga appealed, arguing that the court never had authority to appoint someone to take over handling her case.
The Texas Court of Appeals in Austin agreed, and set aside the negotiated settlement. The court noted that there is a mechanism for appointment of a guardian, and the procedure must be followed in order to protect the rights of people who are alleged to be incapacitated. Since the powers of a “next friend” look so much like the authority given to a guardian, said the judges, the procedures must be similar. The divorce court simply did not have authority to name someone to take over Ms. Saldarriaga’s case. Saldarriaga v. Saldarriaga, November 13, 2003.
Although Mr. Jones testified in the divorce proceeding about the difference between the titles “guardian ad litem,” “attorney ad litem” and “next friend,” there is no clear consensus among practitioners about the distinctions. A “guardian ad litem” is someone, not necessarily an attorney, appointed to be an incapacitated person’s “guardian” for the limited purpose of a pending legal proceeding. Most practitioners think that a “guardian ad litem” should counsel the attorney as to what would be in the client’s best interests, although many would argue that the proper role is to help figure out what the incapacitated client wants to accomplish, and whether those goals are reasonable. An “attorney ad litem,” a term not used in most jurisdictions, fulfills a similar function but is necessarily an attorney; the role implies that the “attorney ad litem” will argue for what is in the patient’s legal best interest, not just his or her personal best interest.
Finally, the “next friend”–the choice used by the divorce judge in the Saldarriaga case–is the least well-defined of all. Many states permit a lawsuit to be brought by a “next friend” (Arizona is one), but the term is usually used for litigation filed on behalf of minor children by their parents. As Debra Ann Saldarriaga’s case makes clear, neither it nor either of the other designations should be used as a substitute for a real court determination of the ability of a client to make his or her own legal decisions.
An individual must be mentally competent before making a valid will, signing a contract or executing almost any legal document. Confusion often arises because the level of competence required may vary depending on what sort of document is being signed.
Take the case of Agnes Marquis of Bangor, Maine. In November, 2000, she met with her insurance agent for over an hour, discussed her plans with him, and then signed a change of beneficiary form naming nephew Daniel Pelletier to receive several annuity contracts. She told the insurance agent that Mr. Pelletier was the only relative who visited her on holidays, and he helped her run errands.
At about the same time Ms. Marquis was having other problems, according to witnesses. She believed that someone was talking to her through her television, that her dog had nursed her back to health when she fell ill, that unidentified Quakers were going to break into her house at night, and that she was going to marry Jesus. Ms. Marquis visited her doctor a week before and three weeks after she changed the annuity beneficiaries, and both times she was diagnosed as suffering from dementia.
Demented, delusional individuals can still sign new wills and change beneficiaries if they have the necessary level of mental capacity. The question in Ms. Marquis’ case was which level of capacity she needed.
Mr. Pelletier argued that the proper standard was “testamentary” capacity—the level required to make a change to one’s will. Under that test, Ms. Marquis would only have to know who her relatives were, have a general notion of the nature and extent of her assets, and understand the concept of naming someone to receive property after her death. The administrator of her estate argued, however, that Ms. Marquis required “contractual” capacity—the ability to understand the nature of an annuity contract as if she were entering into a new agreement, rather than simply changing beneficiaries. After a hearing the probate court agreed that contractual capacity was the proper standard, and that Ms. Marquis did not have sufficient capacity to change beneficiaries.
Maine’s Supreme Judicial Court upheld the trial judge’s decision. Though changing beneficiaries in an annuity or life insurance contract resembles making a will, it is really a revision of a contract and requires the higher level of capacity. The Court also ruled that there was sufficient evidence that Ms. Marquis lacked the necessary capacity, and ordered that the annuity proceeds be paid to her estate for distribution to the charities named in her will. Estate of Marquis, May 12, 2003.
