Contrary to public perceptions, will contests are actually rare. In fact, few wills are written in such a way that anyone would benefit from a contest — most wills leave property to the same people who would inherit if there was no will. When there is a will contest, however, the two most common grounds are allegations of (1) lack of testamentary capacity, or (2) undue influence exerted by someone. A recent Texas case highlights the differences between those two allegations.
Evelyn Marie Reno died at age 81. She had been married twice, and left three children from her first marriage and one daughter from the second. The youngest child, Jan LeGrand, did not get along well with her half-siblings. Relationships between Ms. Reno and the three children from her first marriage were also strained — at least partially because two of them had initiated a guardianship proceeding (which was later dismissed) against their mother.
Ms. Reno spent the last year of her life in a nursing home. Ms. LeGrand visited her regularly, paid all her bills, and kept her location a secret from her half-siblings. At some point in the year before she died, Ms. Reno asked her daughter to help her prepare a new will disinheriting her other three children and leaving her entire estate to Ms. LeGrand.
The will was prepared (by Ms. LeGrand), and signed in Ms. Reno’s nursing home room. The witnesses were a hospice worker and chaplain, and the notary public was a nursing home employee. Ms. LeGrand was asked to leave the room while the three non-family members discussed the will and watched her sign it.
After Ms. Reno’s death the will was filed with the probate court by Ms. LeGrand. The three half-siblings proposed an earlier will, which left most of the estate to the four children equally.
The Probate Court ruled that Ms. Reno lacked testamentary capacity at the time the last will was signed, and that she was subjected to undue influence by her daughter. The earlier will (and a codicil) were instead admitted to probate.
The Texas Court of Appeals analyzed the findings of the Probate Court, and modified the basis for its findings — while not changing the result. The evidence, according to the appellate court, showed that Ms. Reno DID have testamentary capacity. Though she was often confused, the two witnesses and the notary agreed that the will was signed on a good day. Evidence of confusion and occasional disorientation on days before and after the will signing was not enough to overcome the testimony that she knew what she was signing, who her children were and what she intended to do at the time she signed the will.
The appeals judges agreed with the Probate Court, however, on the subject of undue influence. A key part of the evidence considered by the Court of Appeals: the fact that the will was actually prepared by Ms. LeGrand. As the Court wrote: “the fact that LeGrand personally prepared teh will without the intervention of an atotrney or other third party is significant.”
Also important to the court’s analysis: Ms. LeGrand had sole access to Ms. Reno for more than a year (during which time their mother’s whereabouts were not shared with the other three children). During that time, noted the Court of Appeals, Ms. Reno was completely dependent on Ms. LeGrand for bill-paying, care management and personal contact.
A more subtle distinction is drawn by the appellate judges with regard to Ms. Reno’s declining mental status. Though her condition at the moment of signing the will did not support the allegations of lack of testamentary capacity, her growing confusion and periodic mental weakness made her susceptible to undue influence.
Finally, the Court of Appeals notes that the will prepared by Ms. LeGrand for her mother was a complete shift from her prior wills. In each of those she made specific bequests to her four children and thirteen grandchildren, plus hospitals, her church and her pastor. The last will, however, left everything to one daughter — and this significant change in her dispositive plan was yet another indication of undue influence.
Though family members often confuse the concepts of testamentary capacity and undue influence, the legal analysis of the two different approaches to will contests is well-developed. It is also important to note that not every attempt to talk someone into making a new will is automatically subject to challenge. As the Reno court opined, in somewhat dry legalistic language: “One may request, importune, or entreat another to create a favorable dispositive instrument, but unless th eimportunities or entreaties are shown to be so excessive as to subver the will of the maker, they will not taint the validity of the instrument.”
The difference between “lack of testamentary capacity” and “undue influence” is legalistic, to be sure, but it is more than just academic. Interestingly, the Texas Court of Appeals noted that there is a difference in the burden of proof borne by the parties in the two different kinds of cases. In a case alleging lack of testamentary capacity the proponent of the will has the burden of proving that the testator understood what she was doing. In an allegation of undue influence, the challenger carries the burden of proof.
That means that each side in Ms. Reno’s case met their burden of proof. That is, Ms. LeGrand showed that her mother understood what she was doing, but the other three children demonstrated that Ms. LeGrand unduly influenced their mother. Estate of Reno, December 18, 2009.
Preparation of an estate plan is more than the individual documents. A good attorney considers the client’s circumstances and wishes, and analyzes the best course of action. The process requires the attorney and the client to communicate, and to work together.
Too often, however, problems arise after the attorney’s work is done. Clients are often pulled in different directions by family members, bankers, accountants, and other professionals. Television, radio, newspaper and magazine presentations aimed at mass audiences may confuse or mislead the client. Even if the client resists all of those voices, documents may get lost or inadvertently destroyed. What is a conscientious estate planner to do?
Many lawyers routinely hold on to original documents prepared for their clients. The best argument for doing so: it helps prevent accidental destruction or loss of the documents, and makes it harder for clients to make inadvertent changes.
Other lawyers do not like the practice. It takes considerable resources to manage a large collection of original documents. Holding on to originals also conveys the (false) impression that the children or other successors must return to the same lawyer later for administration of the estate.
A small minority of lawyers regularly prepare multiple originals of wills, trusts and powers of attorney. If one original document is in the lawyer’s office, at least it will not be misplaced by the client. This approach also helps reduce the concern that family must return to the same lawyer, since originals in the client’s possession can be used without the lawyer even knowing about the disability or death of the client.
Neither of these techniques does much to protect against the client becoming subject to undue — or unwise — influence. The scenario is common enough to be clichéd: the carefully considered estate plan prepared while the client is clearly competent is changed at the behest of a grasping relative or friend without the original lawyer ever being consulted or even advised.
One Illinois lawyer came up with an unusual way to protect against inadvertent or misguided changes to his clients’ estate plan. Attorney Lawrence Patterson included a provision in at least one married couple’s documents. It prohibited revocation or amendment of the estate plan without the attorney’s written consent.
Was Mr. Patterson’s approach effective? That depends entirely on how one defines “effective.” He has now been sued by his former clients AND is the subject of a pending ethics complaint through the Illinois Bar. Did he “overreach,” or was his concern for clients “admirable?”
We offer those two terms advisedly. They appear in two of the available documents responding to Mr. Patterson’s approach. Here is what has happened in the public record so far:
First, Mr. Patterson’s clients visited a new lawyer to modify their estate plan. The new lawyer wrote to Mr. Patterson, asking him to acknowledge that the clients had the right and power to do that. Mr. Patterson wrote back, telling the new lawyer that he would first need to meet with the clients to “determine whether the changes are consistent with the interests and protections embodied in the original plan.”
Rather than meet with Mr. Patterson, his clients filed a lawsuit seeking a declaration that Mr. Patterson could not control whether they amended their estate plan. The trial judge agreed, dismissing Mr. Patterson’s objections summarily and assessing legal fees and costs of $5,393.75 against him. Mr. Patterson appealed both determinations to the Illinois Court of Appeals.
Meanwhile someone (it may have been the clients, the opposing lawyer or even the judge in the trial case) notified the Illinois Attorney Registration and Disciplinary Commission of Mr. Patterson’s refusal to consent to the changes without first meeting with his (now) former clients. The Commission (which regulates lawyers practicing in Illinois) filed a two-count complaint against Mr. Patterson for what it saw as “overreaching.”
Interestingly, the first count in the ethics complaint dealt with an entirely unrelated matter, in which Mr. Patterson brought a guardianship petition against a client when she disagreed with his advice in a contested probate matter–a practice we have previously written about in another unrelated case out of Washington State. The ethics complaint against Mr. Patterson is still pending.
Then the Illinois Court of Appeals ruled on the lawsuit against Mr. Patterson. Its analysis indicated that his clients had given Mr. Patterson a fiduciary role over and above his standing as their attorney. They had made an irrevocable decision, according to the appellate court, to give him the power to oversee their estate planning changes in the future. Even though they subsequently fired him as their attorney, he remained as the arbiter of their future estate planning changes.
Far from criticizing him for his role, the Court of Appeals found his conduct to be “admirable, and consistent with the highest ideals of the bar.” The appellate court noted that the documents prepared by Mr. Patterson gave his clients the power to seek court approval of any change if they did not want to deal with him, and that his power was tempered by a duty to act as a fiduciary for his clients. “In light of the obvious expense to Patterson,” noted the appellate court with understatement, “we will leave it to other estate planners whether they wish to use this particular method of estate planning.” Dunn v. Patterson, November 18, 2009.
Note: we owe a considerable debt to the research work on Mr. Patterson carried out by Illinois estate planning attorney Joel Schoenmeyer. His excellent, entertaining and informative blog “Death and Taxes” has tackled the Patterson case, as well.
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.
Adelaide Briskman was 82 when she died in Florida. She left property in that state and in Pennsylvania, and a will that she had signed just five months before her death. She also left a controversy between her family and the beneficiary she had named in her will.
In the last months of her life Ms. Briskman had transferred most of her property to Mark Resop, the branch manager of her bank. The assets were mostly placed in joint tenancy, including over $2,000,000 in an investment account and her Florida condominium. Mr. Resop promptly began to spend the money she transferred into joint tenancy, and he sold her condominium shortly after her death.
The only significant asset not transferred into Mr. Resop’s name before Ms. Briskman’s death was a commercial property in Pennsylvania which housed a branch of Mellon Bank. Mr. Resop petitioned the Pennsylvania courts for admission of the will naming him as beneficiary, and he was appointed as executor. A year later Ms. Briskman’s niece, Julie K. Palley, filed a challenge to that will, alleging that Ms. Briskman was incompetent when she signed the will, or in the alternative that Mr. Resop had exerted undue influence to get her to sign the instrument.
If Ms. Palley was successful in challenging her aunt’s will, an earlier will would have become the “last” will of Ms. Briskman. That earlier document named her lawyer at the time, one Richard Rosin, as executor, and it would have left her estate to various charitable causes.
The Pennsylvania probate court ruled in favor of Ms. Palley, finding the will to be invalid. Mr. Resop appealed to Pennsylvania’s intermediate appellate court. That court saw the case differently.
In the opinion of the appellate court, Ms. Briskman’s niece simply had no standing to contest her aunt’s will. If she had been successful, the court pointed out, she would not have been named as executor—that role would have fallen to Ms. Briskman’s lawyer. She also would not have received any portion of her aunt’s estate, since it would all go to charity. If she had nothing to gain by her challenge, said the appellate court, she had no business filing it, and the court ordered that it be dismissed and Mr. Resop reinstated as executor. Estate of Briskman, September 9, 2002.
Although the circumstances of Mr. Resop’s acquisition of Ms. Briskman’s property may appear suspicious, there is good news in the appellate court decision. Laypersons often express concern about someone challenging their wills, and anxiety about will contests is a common theme in estate planning. In fact, only someone who stands to gain from such a contest is even permitted to object to probate of a will; that is one of the reasons that will contests are relatively rare.
Alaskan Lillie M. Rahm was in her early nineties when she first met handyman Robert Riddell, then in his mid-sixties. Their friendship grew quickly, and Mr. Riddell moved in with Ms. Rahm within a few months. Two years later friends and relatives instituted legal proceedings that lasted well past Ms. Rahm’s death.
When Ms. Rahm revoked a power of attorney naming her daughter as agent and transferred some of her money into a joint bank account with Mr. Riddell, her daughter began to ask questions about her mother’s finances. Ms. Rahm seemed to be confused and Mr. Riddell refused to allow her access to any information, so Ms. Rahm’s daughter filed a conservatorship petition. Four days later Mr. Riddell and Ms. Rahm were married.
That did not stop the legal proceedings, however. After a hearing the public guardian was appointed as Ms. Rahm-Riddell’s conservator. Shortly after that a domestic violence complaint was filed, alleging that Mr. Riddell physically attacked and verbally abused his wife. The public guardian moved her to an assisted living home in Washington; Mr. Riddell found her, removed her from the facility and took her to Oregon to live with him. He refused to reveal her whereabouts despite court orders; Ms. Rahm-Riddell died in Oregon in 1997.
It turned out that Ms. Rahm-Riddell had signed two wills after meeting Mr. Riddell. The first, signed shortly after their meeting, left her home, its contents and one-fourth of the rest of her estate to Mr. Riddell. The second, signed in Oregon just a few months before her death, left her entire estate to Mr. Riddell.
Ms. Rahm-Riddell’s family asked the Alaska courts to admit an earlier will to probate and Mr. Riddell objected. He insisted that the last will she signed was valid, and he demanded a jury trial as to her competence to make the will. Her daughter and brother argued that she was not competent at the time, that Mr. Riddell had unduly influenced her, and that the matter should be tried without a jury.
The Alaska court refused to grant a jury trial and ultimately ruled that only the will signed before Mr. Riddell’s appearance on the scene was valid. Mr. Riddell appealed to the Alaska Supreme Court.
The general rule in Alaska (as it is in Arizona) is that civil matters are decided by the judge unless there is a specific statute or the common law (the rules predating statehood) authorizes a jury. Since will contests were unknown to the common law and no statute permits it, Mr. Riddell’s demand for a jury trial was properly denied. Furthermore, said the Court, the evidence was clear that Ms. Rahm-Riddell could not correctly identify the individual involved in her life at the time the will was executed. Mr. Riddell’s wills were struck down. Riddell v. Edwards, October 5, 2001.
“Undue influence” is usually thought of in connection with provisions in a will. It can also be cited in attempts to set aside transfers made during life, as a recent North Carolina case illustrates.
In early 1996 Irene J. Stephenson signed a deed conveying her home and sixteen acres of land to the Wake Forest Baptist Church. The deed reserved a “life estate” to Ms. Stephenson—that is, it allowed her to live on the property, rent it and use it as she wished for the rest of her life.
Shortly after she signed the deed, Ms. Stephenson moved to set it aside. She claimed that church members had brought the deed (and an attorney) to the nursing home for her to sign, and that no attempt had been made to involve her family, her attorney or the agent she had named in her durable power of attorney.
Ms. Stephenson had been eighty-seven years old when she signed, and had been living at a local nursing home for two years. Her mental health had allegedly begun to fail. In fact, Ms. Stephenson died before the case could be resolved, and it was continued by her probate estate.
After the complaint was filed, the Wake Forest Baptist Church moved for summary judgment, which was granted. Ms. Stephenson’s estate appealed.
The original complaint had not included a claim that church members unduly influenced Ms. Stephenson to sign the deed. The Court of Appeals directed that the case be returned for a decision on the possibility anyway, and it provided some guidance on what to look for when analyzing a transaction for undue influence. Among the factors the court found might tend to indicate undue influence in this or another transaction:
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“Old age” and mental weakness of the signer
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Change from prior disposition of the property
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Benefits flowing to a non-relative
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Involvement of the beneficiary in procuring the transfer
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Disinheritance of the “natural objects” of the signer’s bounty
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Constant association and supervision by the beneficiary, as when the signer lives with the beneficiary
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Lack of opportunity for others to visit the signer
In Ms. Stephenson’s case, said the court, there was at least some evidence on several of those elements.
Ms. Stephenson’s estate should be permitted to put on its case for undue influence, and so the case was remanded for further proceedings. Meanwhile, allegations of interference with a contract and unfair trade practices were dismissed. Stephenson v. Warren, March 7, 2000.
Arizona law is very similar to the North Carolina court’s holding. In a 1966 case the Arizona Supreme Court outlined eight factors tending to show undue influence, with much the same effect. One subtle (but important) difference: Arizona cases have expressly held since at least the mid-1940s that “advanced age” (by itself, at least) can not give rise to any presumption of undue influence.
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.
New 1995 figures have been determined for Medicare premiums, deductibles and co-payments. The new figures are expected to raise a total of nearly $3 billion from Medicare participants.
Part B premiums are scheduled to increase to $46.10 per month. In most cases, this increase is simply deducted from the participant’s Social Security check, so the effect will be to reduce the cost-of-living increase slated to go into effect at the same time. The average net increase in Social Security is projected at about $14 (after deduction of the new higher Part B premium).
Medicare’s hospital deductible will increase to $716 (from $696 for 1994). This amount is the total hospital cost to a Medicare participant for the first 60 days of hospitalization. After that point, patients will pay $179 per day in co-insurance (up $5 from 1994).
Nursing home co-insurance will increase to $89.50 per day. This is the amount that a Medicare patient will pay for a covered nursing home stay after 20 days and until 100 days in the nursing home. Medicare pays the entire cost of the first 20 days and none of the cost for those days over 100. Of course, these figures apply only to covered nursing home stays; most nursing home care is not covered by Medicare at all.
Undue Influence
A recent Missouri court case demonstrated an interesting variation on undue influence. An elderly man who had a terrible fear of divorce was manipulated by his second wife into changing his Will in her favor.
The decedent had been divorced years earlier and the experience had been traumatic. He had attempted suicide twice during the year in which he was divorced, and was terrified by the proceedings.
Several years later he married a family friend who was familiar with his history. She allegedly began manipulating him by threatening to file for divorce herself, and he ultimately signed a Will leaving his entire estate to the second wife. He later told his lawyer and others that he wanted to change his Will again to leave most of his estate to his children, but never got around to doing so.
After his death, his children contested the Will leaving all to the second wife. A jury found in favor of the children and his second wife’s son (she died shortly before the decedent) appealed.
The Missouri Court of Appeals ruled that the man’s particular terror of divorce made him susceptible to undue influence, and that the second wife had exerted such influence on him. The fact that he had taken no steps to correct the undue influence, even after his wife’s death, did not change the result; the evidence included testimony that he suffered brain cancer and was hospitalized shortly after his second wife’s death. Needels v. Roberts, Missouri Court of Appeals, 1994.
