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Lawsuits challenging the validity of wills and trusts based on undue influence have become increasingly more common. In many, if not most cases, the persons alleged to be exerting the influence are family members or trusted others who use their position to unduly influence the elder for their own greed or financial gain. In a typical example, one sibling has been primarily responsible for providing care to one or both parents in the final stages of their life. The family had a “great” relationship for many years and it was “understood” that all property was to be divided equally upon the parents’ deaths. However, as the parents’ health deteriorated and they became more dependent on the one child for assistance, a new estate plan was implemented leaving the majority of the assets to their caregiver to the exclusion of the other children. Were such acts the result of undue influence by the caregiver, or the result of the parents feeling the child was “entitled” to more due to her assistance in their time of need? What is the burden of proof in such cases? How do you prove undue influence or defend against such a claim?
In other cases, the catalyst for a challenge and possible lawsuit stems from those heirs who feel jilted and “entitled” to inherit from the deceased. For example, a client’s deceased father had a large estate which he had represented and assured her for years would be split between her and her siblings. Without the client’s knowledge, a few years before her father’s death, he had amended his estate plan to leave most, if not all, of his sizable estate to his new (and, not uncommonly, much younger) wife. According to your client, before his remarriage, the children had a loving relationship with their father. However, following his remarriage, communication was intermittent and all communication with their father was either monitored or restricted by the new wife. Is there a claim for undue influence? What is your client’s recourse? How, as a lawyer, do you effect and protect a deceased client’s dispositive intentions, and prevent yourself and your lawyering from coming under attack? This article discusses the burden of proof in establishing a claim of undue influence as well as steps estate planning attorneys can take to ensure that their clients’ testamentary disposition is not subject to attack based on undue influence.
Upon a finding by the trial court (1) that a confidential relationship existed between the will maker and another, stronger party and (2) that the stronger party actively assisted in the preparation of procurement of the will, a rebuttable presumption of undue influence at once arises that shifts to the will proponent the burden of producing evidence. Estate of Holcomb, 2002 OK 90 ¶¶18-19, 63 P.3d 9 (emphasis in original). A “confidential relationship” is generally synonymous with a “fiduciary relationship,” Blacks Law Dictionary 4th Ed P. 370, and exists whenever trust and confidence are placed by one person in the integrity and fidelity of another. Fipps v. Stidham, 174 Okl. 473, 50 P.2d 680 (1935); Matter of Estate of Beal, 1989 OK 23, 769 P.2d 150, 154. Factors to be considered in applying the two-prong test include: (a) whether the person charged with undue influence was not a natural object to the maker’s bounty; (b)whether the stronger person was a trusted or confidential advisor or agent of the will’s maker; (c) whether the stronger person was active and/or present in the procurement or preparation of the will; (d) whether the will’s maker was of advanced age or impaired faculties; and (e) whether independent and disinterested advice regarding the testamentary disposition was given to the maker. Matter of Estate of Maheras, 897 P.2d at 268.
a. Natural Object of the Maker’s Bounty
Undue influence has the legal meaning of wrongful influence. Influence acquired through affections is not, in itself, wrongful. Higgins, 863 P.2d at 1121. “Influence gained by kindness and affection will not be regarded as ‘undue’... even though it induces the testator to make an unequal or unjust disposition of his property in favor of those who contributed to his comfort and ministered to his wants, if such disposition is voluntarily made.” Mackall v. Mackall, 135 U.S. 167, 172, 10 S. Ct. 705, 34 L.Ed. 84 (1890). “It is a reasonable assumption a testator may maintain warm affection for one who has been his companion and ministered to him during life’s closing years. Thus, kindness and consideration shown a testator cannot be considered as constituting undue influence which destroys a will.” In re Estate of Newkirk, 1969 OK 93, 456 P.2d 104, 107. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relations with them at the time of its execution. Myers v. Myers, 266 P. 452 (Okla. 1928). The question becomes whether the testator was weak willed and, therefore, abnormally susceptible to being influenced by others? See Estate of Webb, 1993 OK 75, 863 P.2d 1116, 1121. To be actionable the influence of another “must destroy the grantor’s free agency...in effect, substitute the will of another for that of the grantor.” Higgins v. Oklahoma National Bank & Trust Co. of Chickasha, Oklahoma, 1993 OK 75, 863 P.2d 1116, 1121 (1993); Canfield v. Canfield, 1934 OK 43, 31 P.2d 152, 156 (1934).
A testator’s wife is presumed to be the object of his affection and has a natural claim to his bounty. In re Estate of Holliday, 1958 OK 162, 327 P.2d 456, 462 (1958); In re Estate of Mowdy, 1999 OK CIV APP 4, 973 P.2d 345, 347 (1999). “It is not unusual that a husband leaves the lion’s share of his estate to his wife. Indeed, it would be quite surprising if a man’s behavior did not change in any respects after marriage. And tension between a spouse taken late in life and one’s children is not abnormal.” Estate of Montgomery, 881 S.W.2d 750, 757 (Tx. Ct. App. 1994). The natural preference of a testator is to leave more to those close to and helpful to the testator, especially a family member who completely devotes their effort and energy to the care of the testator, and renders such a preference a reasonable disposition of the testator’s affairs. In re Braken’s Estate, 1979 OK 185, 475 P.2d 377, 380 (1970), citing In re Lacy, 1967 OK 123, 43 P.2d 366, 367 (1967).
When a parent’s dispositive plan, either by gift or testamentary disposition, involves unequal distributions among children or unnatural dispositions, such as disinheritance of children in favor of a second spouse or caregiver, the attorney must take extra care to ensure that there is ample documentation in the file with respect to the capacity of the client to make the gift or to execute the testamentary document. Effort should be made to ensure that the client was free of undue influence. If capacity is an issue, a physician’s certification should be obtained at the time the documents are signed or the gift made, and the certification should be retained. A videotaping might also be considered, but consider the possible adverse impact. Thomas D. Begley, Jr. Et al., Representing the Elderly Client (Panel 2001) §2.03[A], p. 2-30.
b & c. Stronger Person was a Trusted or Confidential Advisor of the Will’s Maker and was Active and/or Present in the Procurement or Preparation of Will
When a confidential relationship is shown to exist, very minimal evidence is sufficient to set aside a will on the ground of undue influence. Estate of Carano, 1994 OK 15,868 P.2d 699; Anderon v. Davis, 256 P. 1099. A fiduciary, by definition, has a “confidential relationship” and is a person in whom trust and confidence are placed by one person in the integrity and fidelity of such person. Matter of Estate of Beal, 1989 OK 23, 769 P.2d 150, 154 (1989), citing Fipps v. Stidham, 174 Okla. 473, 50 P.2d 680 (1935). An attorney in fact and a primary caretaker qualify as confidential relationships. Estate of Holcomb, 2002 OK 90 at ¶22. Participation in the execution of the will or other testamentary instruments is considered participation in its creation. See, 79 Am. Jur. 2d, Wills '' 428, 429. Uncontroverted evidence of a testator’s strong will and positive character will negate any claim of undue influence based on a relationship between a man and a wife and even a man and his girlfriend. Newkirk, 456 P.2d at 108.
The question of undue influence can arise whenever the elderly client has another person present at the interview with the attorney. Consider the reasons why the elderly client may want another person present. Could it be that the client wants someone for moral support or is the client a victim of undue influence? The attorney should try and ascertain why the client wants someone present, address those concerns of the client and interview the client alone. If the client insists on having another present, explain to the client the problems of the potential for undue influence and the possibility of destroying privileged communication. In some cases, the attorney may not be able to conduct the interview. John J. Regan Et Al., Tax, Estate & Financial Planning for the Elderly (Matthew Bender 2001) §1.06, p. 1-12.
d. Will’s Maker of Advanced Age or Impaired Faculties
In order for undue influence to be proven, it is not necessary to prove that the testator lacked testamentary capacity. However, should the testator be shown to have limited or diminished capacity, such evidence further supports a claim that the will or trust was procured by the “stronger person’s” undue influence. The person contesting the testator’s capacity bears the burden of persuasion. Estate of Sneed, 1998 OK 8, 953 P.2d 1111, 1115 (1998). Testamentary capacity is determined from the condition of the testator’s mind at the time of making the testamentary document at issue. In re Grove’s Estate, 1958 OK 146, 321 P.2d 381, 384 (1958). Testamentary capacity exists when a person possesses, in a general way, the ability to appreciate the character and extent of devised property, and understands the nature and effect of his testamentary act. Holcomb, 63 P.3d at 13; Matter of Estate of Sneed, 1998 OK 8, 953 P.2d 1111, 1115 (1998). A person is presumed to have testamentary capacity at the time he or she executes a will. Lazalle v. Estate of Crabtree, 2009 OK CIV APP 79, 225 P.3d 11, 15 (2009). Once again, the person contesting the testator’s capacity bears the burden of persuasion. Sneed, 953 P.2d at 115.
When a court ascertains a decedent's testamentary capacity, it is appropriate for it to consider evidence of the testator's mental capacity, appearance, conduct, habits and conversation both before and after the will is executed. Estate of Sneed, 1998 OK 8, 935 P.2d 1111, 1117 (1998). Although a testator may be physically weaker, it is not presumed that such weakness alone will have a detrimental effect on his ability to form and communicate his desires to his counsel, know the extent of his assets and understand the consequences of his actions. A person who does not have sufficient mind and vigor of intellect to transact business generally and make contracts can still be legally competent to make a will. Adams, 101 P.3d at 346, citing In re Nitey’s Estate, 1935 OK 1218, 53 P.2d 215, 218 (1935). Further, no presumption of mental incapacity arises solely because a will makes an unequal distribution or gives property to person other than those who are natural objects of the testator’s bounty. Newkirk v. Knight, 1969 OK 93, 456 P.2d 104, 106 (1969). Regardless of the foregoing, a finding of undue influence makes testamentary capacity a moot issue. Matter of Estate of Maheras, supra at 271,275.
In order to establish capacity, testimony may be required from the testator’s physician, lawyers, business partners, friends and the like regarding whether he had the ability to make his own decisions and could understand the consequences of such decisions. Evidence must be presented that the testator managed his own affairs, understood the nature and extent of his assets, and was able to interact normally with friends and colleagues on a daily basis. Again, an estate planning attorney’s notes and file documentation are vital to defeat a claim of lack of capacity as well as a claim of undue influence.
e. Independent Advice Regarding Testamentary Disposition Given
The term "independent advice" means that the donor had the preliminary benefit of conferring fully and privately upon the subject of his intended gift with a person who was not only competent to inform him correctly as to its effect, but who was, furthermore, so dissociated from the interest of the donee as to be in a position to advise the donor impartially and confidentially as to the consequences of his proposed benefaction. In the Matter of the Estate of Maggie Carano, 1994 OK 15, 868 P.2d 699,707, citing Anderson v. Davis, 256 P.2d 1099. The advice which the law requires is not a mere statement of the operation of a gift or bequest, but involves counseling with the donor or testator as to the effect of the transaction and whether or not she should enter into such a transaction. Holcomb, 2002 OK 90,63 P.3d 9, citing Miller v. Miller, 47 A.2d 32.
When an attorney gives no substantial advice and functions as a mere scrivener, the presumption of undue influence is not overcome. In Re Will of Moses, 227 So.2d 829 (Miss. 1969); 79 Am.Jur.2d, Wills § 434. In other words, the independent advice is not “full.” See, Edwards v. Urice, 2009 OK CIV APP 20 ¶18, 220 P.3d 1145. Thus, as an estate planning attorney, one must be sure to give full and complete counsel regarding the testator’s estate plan and its ramifications. Further, the attorney should take copious notes regarding such discussions to be available should the validity of any instruments be called into question. Finally, when capacity or undue influence is or might become an issue, the attorney should consult with them as appropriate and encourage the client to seek additional counsel or consult his accountant, financial planner or other independent professional in order to further strengthen the validity of any testamentary disposition.
A presumption of undue influence arises from the proof of a confidential relationship between the testator and a beneficiary, coupled with activity of the beneficiary in the preparation of the will. In the Matter of the Estate of Seegers, 1986 OK CIV APP 21, 733 P.2d 418, citing Anderson v. Davis, 256 P.2d 1099 952; Matter of Estate of Maheras, 1995 OK 40, 897 P.2d 268. The will proponent’s successful rebuttal of the presumption restores the case to the procedural posture it would have if the presumption had never been operative. This means that contestants must prove the existence of undue influence by a preponderance of the evidence without the aide of the presumption. Holcomb, 63 P.3d at 21. Undue influence may be proved directly or circumstantially, but is ordinarily capable of proof only circumstantially. Id. In determining the question of undue influence, the court should take into consideration the association of the parties, the opportunity for undue influence afforded the person who is especially favored by the terms of the will, and the effect of the will upon those persons whom we would naturally expect to be recipients of the testator’s bounty. Id. Undue influence such as may invalidate a will, must be something which destroys the free agency of the testator at the time when the instrument is made, and which, in effect, substitutes the will of another for that of the testator. Mere suspicion that the undue influence was brought to bear is not sufficient to justify the setting aside of the will. Myers v. Myers, 266 P. 452 (Okla. 1928).
As an estate planning attorney, ensuring your client’s desires regarding distribution of his assets upon his death is of the utmost importance. However, of equal importance is the protection of vulnerable persons from being unduly influenced by those who they trust. Proof of undue influence on a testator necessarily concerns matters and facts hidden from ordinary knowledge, and is provable in large measure only by circumstances. In re Estate of Beal, 1989 OK 23, 769 P.2d 150, 154. Therefore, to ensure that a client’s estate plan is upheld and free from undue influence of others, it is the attorney’s responsibility to provide counsel regarding the client’s estate plan and its ramifications and verify the client’s understanding. Complete and thorough records of all such counseling and advice should be maintained together with supporting evidence such as reports regarding capacity from the client’s physicians and complete memorandums to the file regarding execution as well as possible recording of the execution should be considered. Taking steps to ensure a presumption of undue influence can not be established may be the difference between your client’s testamentary dispositions being upheld or his assets being dissipated needlessly in litigation.
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