capacity and contests - undue influence

Question 1

what is undue influence

Answer 1

a third party reason not to look at the will; when the influence of a third party becomes so overbearing that it overcomes the donors free will.

Question 2

when is a denotative transfer procured by undue influence? (via the rst)

Answer 2

if the wrongdoer excreted such influence over the donor that it overcame the donor’s free will and caused the donor to make a donative transfer that the donor would not otherwise have made

Question 3

who has the burden of proving undue influence? what kind of evidence is usually used?

Answer 3

he prevailing rule is that a contestant has the burden of proving that a will was procured by undue influence

Direct evidence of undue influence is rare, so a contestant must typically rely on circumstantial evidence

Question 4

The trier of fact may infer undue influence from circumstantial evince that shows that

Answer 4

The donor as susceptible to undue influence
The alleged wrongdoer had an opportunity to exert undue influence
The alleged wrongdoer had a disposition to exert undue influence AND
There was a result appearing to be the effect of the undue influence

Question 5

sharis key takeaway (the snake grandson case)

grandson (spinelli) gained nearly complete control of his grandparent’s checking account between 2006-08

In 2007 decdent signed a durable power of attorney, prepared by grandson that took effect immediately and gave him broad powers

He did not inform other family members of the power of attorney

He instead contacted an attorney and had an initial meeting and asks him to draft a will for his grandmother

The attorney did not meet with the grandmother and could not remember what she told him regarding the disposition of the assets of her estate

No attorney reviewed the terms of the will in person with her, nor did any attorney attend the execution of the will

He took his grandmother to a nursing home where her husband lived and they executed the will there, with nursing home staff as witness

The will provides that all of her assets to be distributed to her husband if he survives her and if not, the house, and all the assets and property contained therein would go to Spinelli

Is there evidence sufficient to show undue influence by Spinelli that would disallow the will into probate?

ie – Did spinelli exert such influence that it
1. Overcame her free will and
2. Caused her to make a transfer she otherwise would not have made

Answer 5

The judge permissibly found that Spinelli failed to meet his burden of proving that his grandmother, with full knowledge and intent, favored him over her children and other grandchildren without his undue influence

While the burden of proof ordinally rests with the party contesting the will, a fiduciary who benefits in a transaction with the person for whom he is a fiduciary bears the burden of establishing that the transaction did not violate his obligation

Question 6

in the sharis case (the one with the shady grandson) what would be the arguments for the contestant in a fact pattern like that?

what about the proponent?

Answer 6

Contestants
Spinelli is Physically in house, gets power of attorney, controls her finances, sets up meeting with attorney, only person to talk to attorney, attorney did not meet with her in person, the will disproportionately favors spinelli
Ie she has 16 other grandchildren so it raises a red flag that its only made out to him

Proponent (spinelli)
Only person helping granny, driving her to appointments, trying to get her affairs in order, not an expert in will drafting, grandma saw my help and rewarded me via the will

Question 7

what is the burden shifting element in an undue influence problem

Answer 7

once the contestant establishes the presumption of undue influence via a confidential relationship plus suspicous circumstances, the burdne is shfited to the propoent

They get a chance to explain themselves ; but if the court doesnt buy it the court will award the contestant judgement as a matter of law

Question 8

what are the three types of confidential relationship that raise a presumption of undue influence that the benefiter/proponent must overcome?

Answer 8

Fiduciary – Relationship based on settled category of fiduciary obligation.
Reliant – Relationship based on special trust and confidence.
Dominant-Subservient – Relationship based on dominant influence.

Question 9

once the presumption of undue influence is established because of an established confidential relationship, how can the proponent best rebut this presumption

Answer 9

Via proof of advice from independent legal counsel!
If legal counsel thinks undue influence, they wont draft the will

Question 10

what is the formula for a presumption of undue influence

Answer 10

A confidential relationship + Suspicious circumstances= Presumption of undue influence

Question 11

what are some examples of suspicious circumstances that, coupled with the confidential relationship, would trigger the presumption of undue influence

Answer 11

Weakened condition of testator.
Wrongdoer’s preparation of will.
Lack of independent legal advice.
Secrecy and haste.
Change in testator’s attitude towards others.
Discrepancies between old will and new will.
Unnatural disposition.

Question 12

what do we mean by an unnatrual disposition

Answer 12

refers to a provision in a will or estate plan that significantly deviates from what would be expected based on the person’s typical behavior and relationships,

ie like disinheriting a close family member without a clear explanation

Question 13

what are we really looking for when we say confidential relationship

Answer 13

The relationship just needs to be sufficiently close to raise a red flag
Can look into facts of the particular case and relationship
Also looking at the level of continual influence has over the testator

Question 14

what is the diff between testamentary capacity and undue influence

Answer 14

Testamentary capacity is a question of STATUS (ie are they someone who should be making a will)

Undue influence is a question of CONDUCT that deals with the action of a third party

Question 15

how are testamentary capacity and undue influence intertwined in some cases

Answer 15

The mental status of the testator is relevant in assessing the testator’s susceptibility to undue influence by another, and a will may be held invalid on both grounds

Question 16

what is the key takeaway from moses

The decedent was married three times
After the death of of her third husband, a lawyer became her lover as well as her lawyer, and this relationship continued for several years until she died

Before her death she suffered from various health problems as well as alcoholism

Three years before her death she made a will devising almost all of her property to the lawyer

The will was drafted by a separate lawyer, who had no connection with the lover lawyer, and he also didn’t know about the will

The decedent’s closest relative was her oldest sister

the drafting attorney testified that the testator had come alone to his office

She wasn’t drunk and, in his opinion, knew what she was doing

On some later date she called and told him that he had made a mistake in the devise of certain reality, and that she wanted more property to go to her lover lawyer

Was there undue influence here ?

ie do the burden shifting analaysis

Answer 16

The burden starts with the sister
1.Argues there is a confidential relationship: Lawyer is a fiduciary just by the fact that he was here lawyer

2. Is there an unnatural disposition (aka the suspicious circumstances)?
   She’s excluding her sister, but is that odd, especially when giving to someone who is synonymous to surviving spouse

PRESUMPTION IS RAISED – BURDEN SHFITS

Proponent arguments (ie telling his side)
He had nothing to do with drafting the will
She got her own independent lawyer to draft the will
She got the lawyer on her own and communicated with him

Question 17

How does the moses case analysize the proponents evidence to rebut presumption of undue influence via independent legal counsel

Answer 17

But the court disagrees because the outside lawyer didn’t OFFER COUNSEL HE JUST WROTE DOWN WHAT SHE SAID

the independent legal counsel needs to actually offer counsel

Question 18

lipper

Sophie Block’s will disinherited her grandchildren in favor of her children from a second marriage, Frank Lipper and Irene Lipper Dover. The grandchildren challenged the will, claiming undue influence by Frank Lipper.

We start with presumption of lack of undue influence so buren starts with contestant
Contestant burden (the evidence they offer)
Disproportionate estate plan
Frank held negative feelings toward contestant
Frank had access to decedent, could taint her influence

did the contestants offered evidence push the needle enough to show a presumption of undue influence

Answer 18

no; this court imposes an additional burden on the contestant to prove that the will, as written, reflects that the beneficiary’s wishes were substituted for the wishes of the testator; doesnt have the presumption of undue influence

Question 19

what do most states follow in term of undue influence

Answer 19

the sharis forumula of Confidential relationship + suspicious circumstances = presumption of undue influence

Question 20

which undue influence case males it easier for the contestant

Answer 20

The Moses method
Confidential relationship=presumption of undue influence

Question 21

which case made it easier on the propoenet

Answer 21

The lipper method
No presumption of unde influence
Makes it easer for the proponent because the burden is always on contestant

Question 22

in all three cases, which party was the one who lost? what does this tell us?

Answer 22

IN ALL THREE CASES, THE PARTY THAT HAD THE BURDEN LOST
Who holds the burden goes a long way in determining the outcome