March 4th, 2013

In many jurisdictions, the existence of a confidential relationship can turn an undue influence inquiry on its head.  That’s because the existence of a confidential relationship – usually coupled with evidence of something else – can create a presumption of undue influence.  Under Wisconsin law, that “something else” is “suspicious circumstances surrounding making of the will.”  When you have a confidential relationship with suspicious circumstance, then a presumption of undue influence is raised, which must be rebutted by the proponent of the disputed will.

“Suspicious circumstances” seems like a fuzzy concept so we’re going to take notice when the Court of Appeals of Wisconsin finds that suspicious circumstances existed that precluded summary judgment on an undue influence claim.  In Estate of Ely (Ely v. Orth), the Court of Appeals did just that.  Let’s take a look at these “suspicious circumstances.” (more…)

December 14th, 2012

The drafting lawyer.

The attesting witnesses.

The notary.

Time and again the case law suggests to us that these are three of your most important witnesses in defending (or pursuing) a lack of testamentary capacity or undue influence case.  Yet, we sometimes don’t put a lot of thought into who will be our attesting witnesses or notary and how they might come across as witnesses at trial.

In Amerson v. Pahl, decided by the Georgia Supreme Court, we get to see again how a case turns on the testimony of these three witnesses. (more…)

October 29th, 2012

Hell hath no fury like a disinherited child.  Or, if not fury, then at least an appetite for litigation.

Many estate planners recommend against total disinheritance and instead couple a token distribution with an in terrorem clause.  That way the disinherited child stands to lose something if he or she pursues estate litigation.  Of course, that doesn’t always work.  Especially if the risk is greatly outweighed by the potential reward – say giving up a sure $5,000 for a possible $1 million.

So, what else can a testator do to ensure that his or her intent to disinherit is upheld if there is litigation?

In In the Matter of the Probate of the Alleged Will of Joan Pennella, a recent case out of New Jersey, we see the value placed by a court on the testator’s own explanation of why she disinherited two of her children. (more…)

August 7th, 2012

Let’s just jump right into this one: in 2010, a Houston County, Georgia jury declared that a Will and a Revocable Trust executed by Thomas Hines, Sr., in 2002 were invalid, as they were the product of undue influence.

In Davison v. Hines, the Georgia Supreme Court affirmed the jury verdict.  The reason we just jumped right into the discussion of this case is because undue influence cases are fact-intensive.  So, let’s look at the facts that supported the verdict. (more…)

June 4th, 2012

At the heart of many an undue influence case is the confidential relationship.  Under the law of many jurisdictions, it’s a game-changer – it can shift burdens and create presumptions.  But, proving a confidential relationship is often very fact intensive.

In Mangarelli v. Snyder, a New Jersey appellate court gives us a short, sweet lesson on facts sufficient to establish a confidential relationship under New Jersey law. (more…)

May 29th, 2012

As baby boomers enter their 60s, eye disease and vision impairment are likely to become more prevalent in the population.  How might that affect estate planning and will contests?  Are there concerns if a testator cannot read the will he or she is about to execute?

We’ve previously looked at a case where a testator did not need to know the ‘mechanics’ of a will for it to be valid.  Now, we turn to New Jersey, where an appellate court has concluded that a will is not invalid simply because the testator did not read the document before signing it.

The facts of In the Matter of the Estate of Betsy A. Schnitzer are worth a read.  Likewise, the court spends a good deal of time discussing how undue influence presumptions work in New Jersey, which is particularly helpful for New Jersey practitioners.  But, we want to look at the aspect of the case regarding signing a document the testator hasn’t read. (more…)

May 21st, 2012

Non-probate transfers of assets can be tough to attack.  First, they’re often hard for estate beneficiaries or heirs to find out about.  Second, even if they do know about them, in Georgia they’re often wrongly challenged in probate court or there’s a probate court ruling or order that makes them difficult to challenge in the appropriate forum. 

That’s why a case like Prainito v. Smith is unusual.  In this case, the Georgia Court of Appeals affirmed a jury verdict that a decedent’s grandson exercised undue influence and committed actual fraud with regard to a securities account to which the grandson was a joint tenant with the decedent and a certificate of deposit on which the grandson was a payable on death beneficiary.

The appellate court’s failure to flesh out some more of the underlying details of the case and failure to fully address the undue influence claim, however, make the decision one that may create some issues down the road. (more…)

November 23rd, 2011

We’ve previously noted that undue influence cases are very fact specific.  In other words, the results of undue influence estate litigation will vary greatly based on the underlying facts.  Of course, this leads to bad facts often making bad law in this area.

In Simmons v. Norton, the Georgia Supreme Court had occasion to remind us of what doesn’t constitute undue influence under Georgia law. (more…)

October 28th, 2011

We’ll start and end the week here at BryanCaveFiduciaryLitigation.com with powers of attorney.  In order to abuse a power of attorney, there actually has to be one.   In Kubek v. Jones, the United States District Court for the Middle District of Alabama recently determined that a decedent’s daughter forged a power of attorney so she could convert her father’s retirement benefits and life insurance policy to the exclusion of her stepmother.  And, as if the forgery wasn’t enough, she also exercised undue influence over her father.

(more…)