Capacity, Undue Influence and Other Objections that Overturn a Will
Lack of capacity and undue influence, the two most common claims asserted in Massachusetts will contests, were explained in the 2006 Massachusetts case of O'Rourke vs. Hunter. Here is how the Supreme Judicial Court explained the elements you need to contest a will in Massachusetts:
Lack of Testamentary Capacity
At the time of executing a Will, the testatrix must be free from delusion and understand the purpose of the Will, the nature of her property, and the persons who could claim it. The critical question is whether the Testator was of sound mind at the time the will was executed. A person may have testamentary capacity at one time, and lack it the rest of the time. The proponent of the Will, who has the burden of proof on the issue of testamentary capacity, is aided by a presumption that the testator had the requisite testamentary capacity. The presumption evaporates when there is evidence of lack of capacity, such as Testator did not comprehend the value of his or her property, the people who would be the objects of his bounty, or the meaning of the Will document.
In a will contest, the contestant has the burden of proving undue influence, and the proponent of the Will wins if he affirmatively demonstrates that the contestants have "no reasonable expectation of proving an essential element of [their] case." Four considerations are usually present in a case of undue influence:
Actor Mickey Rooney was the victim of a trusted relative. He explains how anyone can become a victim:
A Massachusetts Probate Court, and the Appeals Court, were confronted with claims of undue influence and questionable capacity in the 2011 case of Paine v. Sullivan. John L. Sullivan, a 92 year old dementia patient, signed his last will and testament in 2004, without meeting the attorney who drafted the document. Medical records from 2001 showed “significant frontal dysfunction with poor insight and judgment. A neuropsychological evaluation in 2001 explained the patient’s need for close supervision. By 2003 a personal care attendant was needed 24/7. In the midst of this declining capacity, Mr. Sullivan signed will documents that left only $1.00 to his adopted daughter, Valerie Sullivan. She had previously been named as a beneficiary in a will document that Mr. Sullivan signed in 1995.
The attorney who drafted the will documents in 2002 and 2004 did not meet with Mr. Sullivan. Instead, the attorney spoke by telephone with Mr. Sullivan, who simply confirmed that he was in accord with the instructions” of Odette, Mr. Sullivan’s spouse. Odette passed away in 2004.
After Mr. Sullivan passed in 2006, the costly court battles began over his will. Valerie, Mr. Sullivan's adopted daughter, presented a copy of the 1995 will, and objected to the last will and testament that had left her only $1.00 in 2004. Her grounds were undue influence, and that Mr. Sullivan did not have capacity to understand and sign a will in 2004. The Appeals Court agreed with Valerie on the latter objection.
The attorney who drafted the will testified during a trial in Norfolk Probate Court that he was unaware of the client's neuropsychological testing in 2001, and that he could see from the report that John was impaired and that the report called into question John independent judgment.
The attorney testified that he did not read the wills to John after they were drafted. He mailed the will documents to John and [spouse] Odette, and they took the documents to a local bank for execution. The attorney did not supervise the execution. He could provide no evidence as to John's capacity on the dates the wills were executed.
Bank employees who witnessed the wills were also brought in to testify at the Probate Court trial. The bank employees “did not recall the specifics of the executions, but they never saw John appear confused, nor did they think that he was forced to execute the wills. During the executions, they had no discussions with John aside from social niceties.
The Probate Court, and the Appeals Court, rejected Valerie's claim of undue influence, finding “no evidence that coercion was either necessary or exercised with regard to the wills. But the Appeals Court did overturn Mr. Sullivan's last will on the grounds of testamentary capacity. The Appeals Court judges concluded that Susan Paine, the proponent, failed to meet her burden of proving that John possessed testamentary capacity on the date he executed the will in 2004. According to the Appeals Court, the physician who testified as an expert witness for Paine during the trial had 'cherry picked portions of the medical records that could suggest that John’s dementia was mild and ignored contrary medical records.”Since Valerie had submitted Mr. Sullivan's 1995 will that named her as a beneficiary, the Probate Court judge was ordered to decide whether that will is valid. Susan Paine then requested a rehearing of the Appeals Court decision. But her request was rejected, and the judges wrote on their electronic docket that Paine, as the proponent, failed to meet her burden of proving that John possessed testamentary capacity when he executed the June 26, 2004 will and that evidentiary failings that cause us to conclude that Paine failed to meet her burden as to John's testamentary capacity to execute the June 26, 2004 will apply also to the February 3, 2004, will.
Updated Docket Information on Paine v. Sullivan.
Read the full case.
How to prevent this from happening.
Undue Influence, Deed Documents and Real Estate Transfers
Claims of undue influence can also arise is cases involving deeds and real estate transfers. In 2010 the Massachusetts Appeals Court reviewed a deed that was executed by an elder who was being cared for by one of her daughters.
The Court reviewed a series of events that began in July, 2001 when Constance Patterson executed a will leaving her estate to two of her children, Linda and Sharon. Several weeks later, Constance was taken to another attorney, where she executed a substantially similar Will, as well as a Power of Attorney.
The Attorney explained that she could protect her home from a Medicaid lien if property was transferred to a family member who lived with her. In 2002 Linda moved in with her Mother, and later that month took Constance back to the Attorney, where Constance executed deed conveying West Yarmouth house to Linda, with life estate reserved.
After Constance died in 2004, daughter Susan filed a case alleging undue influence. Susan had provided live-in home care for her Mother during 2001 and she claimed the conveyance was the product of undue influence.
The Massachusetts Appeals Court affirmed a trial court finding of no undue influence. The Court noted that Linda held a POA, but it was not used to effect the transaction. The Court also accepted the Attorney's testimony, and concluded that Linda did not exercise undue influence over her Mother’s decision. The purpose of the 2002 deed was to avoid a Medicaid lien. The Appeals Court also questioned Susan's standing to challenge the deed, because she had been disinherited in the 2001 Wills. Read the case.
Other grounds for challenge to a Will are:
Non compliance with formalities. There must be 2 witnesses, the Will must be in writing;
Ambiguities of Language - Patent (obvious) or latent (not apparent);
Fraud - A mistake induced by intentional misrepresentation or misconduct, concealment of fact;
- Fraud in Execution of the Will;
- Fraud in Inducement, when Testator relies on misrepresentation, non-disclosure, concealment of fact EXTRINSIC to the will
Mistake in the Execution of the Will: Either in the identity of the instrument as a Will or mistake in the Contents
Duress:the Will is voidable, not void
- 1) executing a subsequent Will
- 2) burning, tearing, canceling, obliterating the Will
- 3) by divorce, annulment
When preparing objections to a Will, we investigate the circumstances that surrounded the preparation and execution of the document. Did the attorney who prepared the Will follow the ethical rules and procedures that protect a client? Who drove the client to the law office? Who contacted the law office? Who attended the meeting with the Testator? What were the levels of participation by the people involved? Were drafts mailed to Testator? Does the document cause disinheritance or disproportionate distributions?