A WILL CONTEST

When Mack learned that his Aunt Grace (all names changed except the author) passed away in October 2008, he expected to receive a letter from the attorney representing her estate indicating that he and her other nephew, Joe, and two nieces, Alice and Fran, would receive equal shares of Grace’s estate, as per her Wills of 2001 and 2005. What he didn’t expect was to receive a telephone call from Fran advising that she had just received a letter from Mr. Smith, the attorney representing Grace’s estate, with a copy of a 2007 Will, indicating she was to receive $10,000 and Grace’s caregiver, who started taking care of Grace roughly 18 months previously, was to receive the remainder of her estate. Mack was flabbergasted, although in hindsight, he should have seen it coming.

Aunt Grace and Uncle Ben had no children of their own, but treated their two nephews and two nieces as if they were. In all prior Wills executed by Grace and Ben, the estate of the survivor of them was to be divided equally among Mack, Joe, Fran and Alice.

In February 2007, a new caregiver for Grace and Ben came on the scene named Judith. Within a month Judith insisted that the person who was then in charge of all the caregivers be terminated or she would leave. Joe, who was the agent named in Grace and Ben’s Power of Attorney (their “attorney-in-fact”), discussed the situation with Grace and Ben and they wanted to keep Judith. So in March 2007, the prior head caregiver was replaced by Judith, who was now in charge of four to five other caregivers.

In June 2007, Ben passed away and Grace, to whom he had been married for almost 70 years, was consumed by grief. Grace always had a fear of being alone and now her lifelong companion was gone. In late July 2007, Joe was informed by Attorney Smith that Joe was being replaced as Grace’s attorney-in-fact and Judith would be Grace’s new attorney-in-fact. When Fran and Mack learned of this development, they were concerned. They hired an attorney to look into the matter and had an opportunity to visit Grace, but only under Judith’s “supervision.” They did not know that when Joe was replaced as Grace’s attorney-in-fact that Grace also executed a new Will drafted by Attorney Smith. Attorney Smith assured Mack’s attorney that Grace was competent and the Power of Attorney was appropriate because Joe was supposedly derelict in his duties and “threatened to put her in a home and sell her house.” Of course, neither of those comments was accurate.

An even bigger red flag was raised in October 2007 when Mack and the others learned through the grapevine that Grace had deeded her home to Judith and her husband for $1.00. They then contacted the Agency on Aging and requested they conduct an investigation. They investigated from November 2007 until the end of March 2008 when the caseworker was leaving the Agency and determined that while some of the expenses to remodel Grace’s home seemed extravagant for someone 94 years old, there was no physical abuse. The Agency inquired if a new Will had been drafted to replace the 2005 Will, but Attorney Smith indicated Grace refused to disclose that information. The Agency did not go to court to force an answer.

When Grace passed away in October 2008 and Fran received the letter, Mack tried to retain a local attorney to contest the Will. The local attorney advised against bringing such an action saying that while the case “didn’t pass the smell test,” it was much more difficult to set aside a Will unless there was strong medical testimony, particularly where the scrivener of the Will was attesting to the mental competency of the person making the Will. That is when Mack and Fran decided they needed to find counsel outside of the local area.

When Mack first walked into my office with his son and relayed the above story, I wasn’t sure I wanted to take the case. The prior attorney was right, the facts didn’t pass the smell test (by a long shot), but he was also accurate that contesting Wills is risky business and seldom successful. I advised Mack that I would take the case, but he had to be prepared for a long haul with uncertain results.

As I am writing this article, I can recall vividly the numerous depositions and witness interviews that took place in 2009 and 2010; the two day trial in the Court of Common Pleas in August 2010 (after which the Court declared the 2007 Will invalid); the appeal taken by Judith to the Pennsylvania Superior Court, which upheld the trial court’s decision in August 2012; the Petition for Allocator filed by Judith with the Pennsylvania Supreme Court, which was denied in March 2013; the turning over of the estate’s assets in April 2013; and the final touch, a Quit Claim Deed from Judith and her husband to Grace’s estate, relinquishment of the keys and return of the partial distribution of $10,000 Judith has previously made to herself under the 2007 Will, in January 2015. This brought the case full circle and restored all assets to Grace’s estate. It took from October 2008 until January 2015 to prevail in all respects, but that is what finally occurred.

Having decided to take the case, I wasn’t sure if we should attack the Will on a lack of capacity basis or on the theory of undue influence. I chose the latter. Each case must be evaluated separately, but in most cases, if the facts will support an undue influence claim to set aside a Will, I believe that gives the petitioner a better chance to succeed. In a lack of capacity case you must show that the individual lacked the legal capacity to execute the Will at the time it was signed. You basically have two hurdles to overcome. First, an opposing doctor will inevitably testify that the person was competent. Second, the scrivener – the attorney who wrote the Will – will also testify the person was competent, otherwise he or she would not have drafted the Will. This requires the person challenging the Will to have the better medical expert and be able to somehow discredit the scrivener. No easy task, since under existing case law, the scrivener’s testimony is to be given great weight in Will contest cases.

In pursuing an undue influence case, the petitioner must prove three elements by clear and convincing evidence: 1) that the alleged perpetrator was in a confidential relationship with the maker of the Will, 2) that the maker of the Will was of weakened intellect, and 3) that the alleged perpetrator substantially benefited from the change made in the Will. Proving those three elements by clear and convincing evidence can be a daunting task. However, once that is done, the burden shifts to the alleged perpetrator to prove by clear and convincing evidence that there was no undue influence under the same set of facts. In my opinion, this burden shifting is what makes the undue influence action preferable to a lack of capacity action. The three

elements can be proven easier, if the facts in your case are sufficient, than the two elements for a lack of capacity case. It is difficult for the alleged perpetrator to convince a judge, once he or she has already found the three elements have been met by clear and convincing evidence by the petitioner, that there is sufficient evidence to dispel the finding of undue influence.

After discovery in the case, I thought that we had practically a 100% chance of proving the third element of substantial benefit and we had more than a 50% chance of proving the second prong of weakened intellect. The weakest link of the case was in trying to prove there was a confidential relationship between Judith and Grace at the time the 2007 Will was executed. It was imperative to determine in discovery and prove at trial through various sources that there was a confidential relationship between the two, beyond the Power of Attorney. We were able to prove by testimony from various witnesses that Judith completely dominated Grace’s life when she became the new caregiver, and particularly after Ben passed away. Further, Judith conceded in her deposition testimony that she was “in control of everything.” The scrivener, Attorney Smith, had to admit on cross examination that while Grace appeared competent to him when she executed the 2007 Will, and he did not observe any appearance of undue influence in his office, there were substantial periods of time when he could not observe whether or not undue influence was being exerted by Judith over Grace.

I have been a litigator for over 30 years and have had more estate litigation in the last 10 years than I did in the first 20 years. More and more elderly individuals are taken advantage of by caregivers because they are either incapacitated, easily swayed or completely dependent upon their caregiver.

The points to be taken from this article are threefold. First, take preventative action by hiring well-researched professional caregivers. When you are paying caregivers in cash under the table and less than minimum wage, you will likely regret that decision in either the nature of the care you receive or the legal difficulties you will encounter as stated above. Second, when determining which course to take, seriously consider the specific facts in relating to the elements you must prove. Finally, if you have selected undue influence as the cause of action, direct your discovery in a broad manner to establish as many facts as possible from as many sources as possible to support the three elements necessary to prove your case.

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