Estate Planning Newsletter – June 2017

UNDUE INFLUENCE TO CONTEST A WILL

  Many opinions are issued by the Tennessee Court of Appeals on Will contest cases.  In the past, I have been reluctant to write about these cases because they are very fact specific as to the particular parties in that case.  Also, the facts are difficult to describe in a succinct fashion in a one page letter.  The case of Estate of Laura Copeland Farmer  was no exception.  However, the opinion provided an excellent summary and “checklist” of factors of undue influence and how those factors are applied to the facts in the case.  The facts in the Estate of Laura Copeland Farmer were quite complicated and set out in the opinion in great detail.  However, for purposes of this letter, the facts supported almost every category Tennessee Courts have considered for finding a Will invalid because of undue influence by one party over the testator.   The Court wrote that undue influence, at its core, contemplates some coercive conduct aimed at destroying the testator’s free agency to such an extent that the stronger will of the proponent overcomes the will of the testator.  Because direct evidence of undue influence is rarely available, in most cases, contestants establish undue influence by proving the existence of suspicious circumstances warranting a conclusion that the Will’s execution was not the product of the testator’s free and independent act.  The Court pointed out the list of suspicious circumstances that Court’s review in undue influence cases:   (1)       The existence of a confidential relationship between the testator and the beneficiary. (2)       The testator’s physical and mental deterioration. (3)       The beneficiary’s active involvement in procuring the Will. (4)       Secrecy concerning the Will’s existence. (5)       The testator’s advanced age. (6)       The lack of independent advice in preparing the Will. (7)       The testator’s illiteracy or blindness. (8)       The unjust or unnatural nature of the Will’s terms. (9)       The testator being in an emotionally distraught state. (10)     Discrepancies between the Will and the testator’s expressed intention. (11)     Fraud or duress directed toward the testator.   In the Laura Farmer Estate case, the Court found almost all of the elements of undue influence existed.   MY RECOMMENDATION:   Challenging Wills for undue influence or lack of mental capacity imposes a high burden of proof on the contestant.  The burden of proof is by clear and convincing evidence.  Depending upon other factors in the case (such as the existence of a confidential relationship), the burden of proof may shift from the contestant to the proponent of the Will.  Contesting a Will is a complex type of litigation that frequently requires considerable proof.  Frequently, there will be conflicting testimony by the parties as to the nature of the dealings with the testator and the testator’s mental state.  Clients should confer with experienced legal counsel in this arena if considering bringing or defending a Will contest.   Yours very truly,   RAINEY, KIZER, REVIERE & BELL, P.L.C.     William C. Bell, Jr., Attorney at Law