Capacity
Mental
To say the testator has mental capacity, the testator “must be capable of knowing understanding in a general way:
- The nature and extent of his or her property,
- the natural objects of his or her bounty, and
- the disposition that he or she is making of that property,
- And must also be capable of relating these elements to one another and forming an orderly desire regarding the disposition of that proprerty.”
Restatement (Third) of Property: Wills and Other Donative Transfers § 8.1(b) (2003).
In re Wright’s Estate
60 P.2d 434 (Cal. 1936).
Facts
Mr. Wright was weird. He forgot things easily, acted funny, and devised random things to random people in his will. When he died, his daughter and only surviving heir was given only a part of the estate. She now contests the will on the fact that he was in no sound mind when the will was executed.
Analysis
There is a presumption in favor of sanity. Thus, the daughter has the burden to prove that her father was insane at the time he executed the will. Bare testimony on his character is insufficient. Even moral or mental irregularities are insufficient unless there is a direct showing it impacted the execution.
All the daughter did was present the testimony of people who believed the testator was weird. This was insufficient. Thus, the will can be probated.
Additional Notes
Interestingly, the heirachey for capacity (following from requiring more capacity to less capacity) is as follows:
- Contract
- Wills
- Marriage
That is, you do not need to be sane to have the capacity to marry.
Wilson v. Lane
614 S.E.2d 88 (Ga. 2005).
Facts
Ms. Greer was getting on in life when she executed a will devising her property equally to 16 blood relatives and more to another non-related individual (Lane) who was her primary caretaker. From the testimony, it appears Ms. Greer was in the early stages of dementia when she executed the will (from her physician’s opinion and expert testimony). However, the attorney stated she was adament as to who was to receive the estate. Further, the physician and expert testimony stated that they were not sure of her dementia, only that it appeared that way (and affidavits were only made for certain applications).
Analysis
With the presumption of sanity, the fact that Ms. Greer was getting old was insufficient to say she was lacking capacity.
The dissent points to the medical records specifically to say there the jury should answer the question. Because the jury answered saying she lacked capacity, that should be the result.
Insane Delusion
An insane delusion is that there is no evidence to support the delusion.
In re Strittmater’s Estate
53 A.2d 205 (N.J. 1947).
Ms. Strittmater lived with her parents and never married until they died. Eventually she developed a split personality disorder that caused her to have extreme hatred to men (looked forward to the day when women could have children without men and wanting all male children to be killed at birth). She became a member of the National Woman’s Party and was only mildly active. However, she left her entire estate to the organization. Her cousin’s (only surviving heirs) contested the will saying she had insane delusions.
The court ultimately states that her insane delusion as to the male caused her to devise her estate to the National Woman’s Party. Because the delusion was not justified, the will is invalid.
Breeden v. Stone
992 P.2d 1167 (Colo. 2000).
Breeden committed suicide after he was the subject of a highly publicized hit and run (as the driver). He had a will and codicil but left a suicide note leaving his estate to others not mentioned in the will and codicil. Those left out contested the submission of the note to probate by arguing Breeden was lacking capacity and suffering from delusions.
A person has capacity if (1) the testator knows the nature of the act, (2) knows the extent of property, (3) knows the testamentary disposition, (4) knows the natural objects of the estate, and (5) represents how the property is to be devised. The deulsion test requires there to be a delusion (“belief in that which has no existence in fact, and which is adhered to against all evidence”) affecting the disposition of the will.
Here, he had capacity because he knew his property and his delusions did not alter how he wrote the note.
Undue Influence
The prevailing rule is that undue influence occurs if (1) the donor is susceptible to the influence, (2) the influencer has the opportunity to influence, (3) the influencer had a disposition (character) of influencing, (4) result appears to have been what the influencer wanted.
In re Estate of Sharis
990 N.E.2d 98 (Mass. App. 2013).
Mr. Spinelli moved in with his grandparents Mr. and Mrs. Sharis shortly after his divorce. He lived with them for 8 years and was present when Mr. Sharis was moved to a nursing home and later passed and through Mrs. Sharis’s death. Mrs. Sharis had only a 7th grade education.
Before her passing, Spinelli was appointed power of attorney. He had taken the checks of the Sharis familiy and was writing checks in their names. Shortly before the passing of Mr. Sharis, Spinelli contacted an attorney who drafted a will for Mrs. Sharis (with minimal contact with her) where Spinelli was the primary beneficiary. Spinelli also created a trust account and emptied the checking accounts (originally to go to Sharis’s daughters) into the trust where the money was spent.
Based on the rule, Spinelli had engaged in undue influence to obtain the estate. Mrs. Sharis was susceptible to the influence because of her age, and the broad control Spinelli had over the finances. Spinelli lived in the home and had ample opporuntiy to influence. Coupled with how much Spinelli received, his character, and the lack of independent counsel for Sharis, the court determined undue influence was present.
Additional Notes
Spinelli agreed that he was a fiduciary becaue he had power of attorney. Typically, the presumption is that the testator was not unduly influenced. However, with a confidential relationship (fiduciary, reliant, or dominant-subservient relationship) and suspicious circumstances (unnatural disposition, lack of independent advice, will produced in secrecy or haste, sudden change in the donor’s attitude) will cause the burden to shift to the proponent of the will with rebutting evidence.
Lipper v. Weslow
369 S.W.2d 698 (Tex. App. 1963).
Facts
Ms. Block had three children, Lipper, Dover, and Weslow. Weslow had passed before his mother, leaving behind three children, the grandchildren of Ms. Block. Shortly before Ms. Block’s death, a will was prepared (with her instruction) by her son Lipper, who was a lawyer. Essentially, the will disinherited the three Weslow grandchildren and gave the bulk of the estate to Lipper and Dover. The reason being that the Weslows were unfriendly to Ms. Block and her children after her son Weslow had passed.
There were three witnesses who testified that Ms. Block verbally disinherited her grandchildren, and this testimony matched up with the statement in the will.
Analysis
Although the elements of undue influence are framed, there was no actual evidence of undue influence. The plaintiff’s would have to prove that Lipper had substituted his mind for the the testator’s. Here, there is no evidence he received more than she wanted. Although the circumstances are suspicious, her will and the testimony of the witnesses stating the desire to disinherit her grandchildren matched.
Avoiding a Will Contest
There are a few ways to avoid a will contest. Lipper, in the case above, attempted to avoid the contest but was unsuccessful. For instance, he tried to include a statement of reasons why the grandchildren were disinherited. He also included a no contest clause. A no contest clause says “if you challenge this will, you get nothing.” The issue here, is that the grandchildren weren’t getting anything anyways, so they weren’t disincentivized.
So, here are some ways to avoid a will contest:
- Statement of reasons. Better if not included in the will, and is handwritten by the testator or video recorded.
- No contest clause. Really only successful if there is some teeth. That is, give the potential contestestors some inheritance not worth losing.
- Having a family meeting stating outright (while alive) the disposition and why.
- Setting up an inter vivos trusts and gifts
Another issue in Lipper was that the son was the attorney who drafted the will. Generally, attorney’s are not allowed to draft themselves that give themselves a gift. However, if it is family, a presumption of undue influence does not arise on that fact (instead going through the full test). Ultimately, if the will results as the same as the intestate statute, a family lawyer may draft a will; but if the family lawyer is receiving more than others (even if there are good reasons), then it might be best to find a different attorney.
Duress
Latham v. Father Divine
85 N.E.2d 168 (N.Y. 1949).
Facts
Lyon was a devotee of Father Divine, a religious leader (some called him a cult leader) in the area. In her will, she devised her estate to Father Divine. Later, according to the plaintiff’s complaint, she later expressed a desire to revoke the will and execute a new one where the plaintiffs would receive a substantial part of the estate. However, the complaint states Father Divine conspired to kill and did kill Lyon with a surgicial operation performed by a doctor part of Father Divine’s following.
Analysis
Essentially, the complaint cannot be dismissed because murdering is a means of duress if used to prevent the revocation and execution of a new will. The remedy is to give a constructive trust to the intended beneficiaries.
Additional Notes
“A donatie transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made.”
– Restatement (Third) of Property § 8.3(c)
Fraud
Fraud can be used to execute the will or to induce the will. Fraud in the executement can be done if the frauder makes the testator believe a document other than their will is the will.
Tortious Interference
About half of the states recognize the tort.
Schilling v. Herrera
952 So. 2d. 1231 (Fla. App. 2007).
Facts
Ms. Schilling executed a will naming her brother Edward Schilling as her executor, power of attorney, and named him the primary beneficiary of her estate. Throughout the last years of her life, Mr. Schilling arranged for the care of his sister, including helping her find the care that led her to Ms. Herrera. Ms. Herrera eventually became the primary caretaker of Ms. Schilling and later convinced her to execute a new will naming her power of attorney and primary beneficiary (without informing Mr. Schilling). There is evidence, Ms. Herrera complained about not being paid enough.
When Ms. Schilling passed, Ms. Herrera did not inform Ms. Schilling of his sister’s passing until after probate had closed. She refused calls, and other attempts to contact until she had received the estate.
So, Mr. Schilling is suing saying that she intereferred with his expectancy to receive an inheritance. The trial court dismissed the case.
Analysis
Requirements for the cause of action include (1) existence of an expectancy, (2) intentional interference withe the expectancy, (3) causation, and (4) damages. The purpose is to protect the testator, not the beneficiary.
Here, the complaint did enough to state a claim. There is evidence Ms. Herrera used fraud to induce the new will. There is also evidence Ms. Herrera used fraud to prevent Ms. Schilling from exercising probate remedies. Thus, the trial court ruling is reversed and the case is remanded.
