B. Undue Influence (cont.) Lord Justice Hannen 1

Will contest planning Contest Grounds Most common grounds for a will contest are lack of capacity and undue influence. Often alleged together; testators mental status overlaps with the susceptibility element of undue influence. Warning Signs Unnatural dispositione.g., omission of child or unequal shares for children New testamentary scheme makes a radical departure Multiple or blended families. Imposes conditions that are likely to anger the beneficiary. Makes a disposition to a person unpopular with the testators family. 2

Precautionary measures, pages Record Building Letters between lawyer and client Recorded video discussion Professional examination of capacity Maintain Secrecy Inter vivos trust Inter vivos gifts Soothe Feelings Family meeting Letter or video explanation 3 Disinterested witnesses with affidavits Inter vivos trust

Inter vivos trusts In will challenges, the basic question facing the court is whether the testator really intended the dispositions in the will With a trust that has existed for an extended period of time, its easier to persuade the judge that it genuinely reflects the wishes of the grantor Trustee will be able to testify to the grantors capacity based on series of interactions In addition, if a long-standing trust is invalidated, months or years worth of transactions are invalid. Trying to undo all of those transactions, many of which involved innocent third parties, will discourage many courts from findings of incapacity 4

Inter vivos trusts As a practical matter, challengers will need to contest trusts immediately. But how will they know about them? And if they do find out, they may be reluctant to antagonize the grantor, who can rewrite any trust or will In the Kauffman case, then, Robert would have been better off had he established an inter vivos trust Other useful steps would have been to make a bank the trustee, rather than have Walter handle business matters, and to rewrite or update the 1951 letter with each successive will 5

C. Fraud 6

Forms of fraud Fraud Testator is deceived by a deliberate misrepresentation and as a result does that which s/he would not have done. The misrepresentation must be made with the intent to deceive the testator and a purpose to influence the disposition Fraud in the Inducement A misrepresentation causes the testator to execute or revoke a will, to refrain from executing or revoking a will, or to include particular provisions in the wrongdoers favor. Fraud in the Execution A person intentionally misrepresents the character or contents of the instrument signed by the testator, which does not in fact carry out the testators intent. 7

Remedies for fraud Invalidate the fraudulently procured provision Refuse to probate the will Probate the will and impose a constructive trust 8

Puckett v. Krida, p. 209 Two nurses were hired to care for Nancy Hooper after she returned home from being hospitalized with Alzheimers disease By misleading Hooper into thinking her family was misappropriating funds, the nurses were able to obtain a power of attorney, a deed and dispositions in her will 9

Nancy Hooper Nurse Krida Nurse Reeves Jean Law (niece) Puckett v. Krida Puckett v. Krida, 1994 WL (Tenn. App. 1994) 10

Was there undue influence or fraud? There was a confidential relationship from the nurse-patient relationship and power of attorney There was a suspicious circumstance from the deliberate misrepresentations that changed Ms. Hoopers attitude toward the niece and induced her to favor the nurses This court, like others, applies the same burden-shifting rules for fraud as for undue influence 11

D. Duress 12

Duress When undue influence becomes overtly coercive, it is called duress.undue influence A donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made. Restatement (Third) of Property: Wills and Other Donative Transfers §8.3(c) (2003). The law invalidates transfers compelled by duress. 13

Latham v. Father Divine p. 210 Mary Lyon had executed a will three years before her death, in which she left her estate to Father Divine, two corporations affiliated with Divine and an individual follower of Divine Lyons first cousins claimed that she planned to execute a new will leaving much of her estate to them, but that Divine and the others stopped her, first by using physical force and then by killing her during surgery 14

Mary Lyon Father Divine Follower Affiliated Corp. 1 Affiliated Corp. 2 Latham v. Father Divine Latham v. Father Divine, 85 N.E.2d 168 (N.Y. 1949) 15

The value of a constructive trust Invalidating the will would not have helped the contestants since they claimed that duress prevented Ms. Lyon from executing a new will that favored them Had the will been invalidated, the estate would have gone to Ms. Lyons intestate heirs (the contestants were cousins but not next of kin, p. 210) 16

Undue Influence A donative transfer is procured by undue influence if the wrongdoer exerted such influence over the donor that it[:] overcame the donors free will and caused the donor to make a donative transfer that the donor would not otherwise have made…. Restatement (Third) of Property: Wills and Other Donative Transfers §8.3(b) (2003). 17