Return to Portfolio – “How Would You Rule?” – Undue Influence Over Wills
How Would You Rule?
In an earlier article, you looked at what can happen when someone passes away without a will. This month, you will learn about two very common issues when a person passes away with a will, particularly if there is a lot of money and assets to be inherited.
Any lawyer who handles wills, trusts and estates will tell you that it is not a quiet practice. There is something about free money as well as the desire to have mattered to the decedent (the person who passed away) that often creates conflict over who gets what.
The two issues are testimonial capacity and undue influence. Testimonial capacity is lawyer jargon for an individual’s mental ability to make a valid will. Undue influence means that the person making the will has had his or her will overcome in some way. These two issues can both occur in the same case.
This month’s facts well illustrates these two issues, and how closely these issues intertwine with each other.
The decedent (call her Mary) and her husband had two children and a granddaughter. The family lawyer prepared a will providing that both the son (call him Joe) and the daughter (call her Jill) inherited equal shares. The granddaughter inherited nothing under that will.
One year later, the couple changed their will by reducing Jill’s share by one-half, not to be given to Jill until she turned 55. The other half of Mary’s share was to go to charities. Joe was appointed to be in charge.
Five years after the will was changed, Mary’s husband passed away. Eleven years after Mary became a widow, she gave powers of attorney to both Joe and Jill. Jill then tried to withdraw $800,000 from Mary’s bank accounts.
Jill later stated that she was borrowing the money to buy a house, and that she intended to return the money through the proceeds of a lawsuit. Mary’s attorney was unable to locate any lawsuit. Mary removed Jill from the power of attorney.
The following year, Mary learned that Joe had used his power of attorney to take about $500,000 from Mary’s accounts. She then revoked his power of attorney, and reappointed Jill as her agent.
The year after that, Mary ended Jill’s power of attorney for allegedly misappropriating funds again from Mary’s bank. She gave Joe another power of attorney. At that time, Mary was apparently living in an assisted living facility. She told Jill in front of witnesses at the facility that she had terminated Jill’s power of attorney, and to stay out of her banking account. Jill was no longer allowed to visit Mary.
Jill then used the revoked power of attorney to take $55,000 out of Mary’s accounts. The police were informed. Jill testified that she had returned the money.
Two years later, Mary changed her will to completely disinherit Jill, and added her granddaughter (Cynthia) in Jill’s place. Mary passed away the following year, and Cynthia was put in charge of the estate, and the probate proceedings began.
When Jill learned that she was to receive nothing from the estate, she filed a petition seeking to overturn the will. She argued that Mary did not have testimonial capacity to make the will, and that Cynthia had unduly influenced Mary.
The attorney who had been Mary’s lawyer for over twenty years, and two members of the assisted living facility who witnessed the will, testified that Mary did have enough understanding about what she was doing in making her will for the will to be valid.
One nurse testified that she did not, but had only met Mary once, and admitted that she had not tested Mary for mental capacity. Mary was taking a prescription to help with intellectual functioning, and had been diagnosed with dementia. She was, though, still able to take care of herself in most ways.
Cynthia apparently got nervous, and testified that she did not know that she was to inherit from Mary when the will was made. The trial court found that testimony not true. Cynthia had taken the will from the attorney’s office to Mary, and back again. She also had visited Mary almost every day, as well as being her agent.
The trial court upheld the validity of the will, and dismissed Jill’s petition with prejudice. “With prejudice” means that Jill could not contest the will again. Jill appealed to the Court of Appeals, arguing lack of mental capacity and undue influence by Cynthia.
At the trial level, Cynthia had had to submit some proof that she had not had undue influence. The trial court ruled that Cynthia had met her burden of proof, and that it was up to Jill to prove undue influence.
Here is where the case gets legally technical. To win, a legal test of proof needs to be met. The standard of proof in a case ranges from low to high. In this case, Jill had to prove “…clear, cogent, and convincing evidence.”
So, how would you rule? Should the Court of Appeals decide in favor of daughter Jill or granddaughter Cynthia? Did Mary have testimonial capacity despite a medical diagnosis of dementia when she made her will? Did Cynthia have undue influence over Mary when Cynthia had not even been in any prior will? You rule!
Go to page ___ to find out how the judges ruled.
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