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PLANNING FOR ELDERLY CLIENTS WITH COMPETENCY AND/OR UNDUE
INFLUENCE ISSUES
Presented to The Greater Boca Raton Estate Planning Council
January 22, 2013
Ivan Taback, Esq. Proskauer Rose LLP
Eleven Times Square New York, New York 10036
Telephone: 212. 969. 3662 Fax: 212. 969. 2900
Email: itabackproskauer. corn
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PLANNING FOR ELDERLY CLIENTS WITH COMPETENCY AND/OR UNDUE INFLUENCE ISSUES
By Ivan Taback, Esq. and George D. Karibjanian, Esq,
With all due respect to Steven Covey, this presentation will follow the "7 Habits of Highly
Effective Estate Planning Attorneys With Respect to Incapacity and Undue Influence Issues: (1) introduction of the subject material; (2) an analysis of Model Rule of Professional Conduct 1, 14;
(3) a description and analysis of "testamentary capacity"; (4) an description and discussion of "undue influence"; (5) a discussion of the ethical, but not necessary legal, conflict of interest
when an attorney receives a devise under a client's testamentary documents; (6) how the attorney
can informally utilize steps to generally assess capacity; and (7) planning to avoid any challenges
to the testamentary documents.
A. Introduction
(1) America is aging. Deal with it.
(a) America is aging and living longer than ever before. While this is not
earth-shattering news, it is interesting to note that there are 35 million
Americans over age 65 of whom 4. 6 million are over age 85 and 60, 000
are over age 100.
(b) In addition, over 50% of women as well as 30% of men who reach 65 will
live until age 85.
(2) With aging comes the possibility that clients may not be fully aware of what they
are doing with respect to their respective estate plans.
(a) Aging-related illnesses should send a warning flag to all estate planning
practitioners, as, for a number of reasons, an elderly client is more likely
than a younger client to be or become incapacitated.
(i) The elderly are particularly at risk for many diseases and disorders
that are associated with dementia and delirium,
(ii) Dementia and delirium are highly correlated to the loss of mental
capacity, which in turn can result in legal incapacity, 4
2012 by Ivan Taback and George D, Karibjanian
Andrew H. Chook and Thomas D. Begley, I. awyering for Older Clients, A New Paradigm — Part /, 32 ESTATE
PLANNING JOURNAL NO. 4 (April 2005), citing U. S. Bureau of the Census, http: //factfinder, census. gov/home/
saff/main. html? lang=en.
Id.
A. Kimberly Dayton, Timothy H. Guare and Molly H. Wood, ADvlsING THE ELDERLY CLIENT (updated through
June 2011), $ 32. 2, citing MERCK MANUAL FOR HEALTHCARE PROFESSIONALS, NEUROLOGICAL DISORDERS,
1
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(iii) At least 5-8% of all persons over the age of 65 suffer from
dementia; among elders 80 and older, this figure climbs to more
than 50%. Medical professionals estimate that Alzheimer's disease
causes 50 percent to 70 percent of all dementia,
(b) As individuals age, physical and mental abilities "slow down, " even
lacking a specific illness such as dementia or delusion.
(i) Most of the very old have diminished short-term memory, with the
result that they have difficulty recalling information. For example,
the planner explains the advantages of generation-skipping transfer
tax planning, and the client acknowledges that not only does she
understand the explanation during the meeting, but she recites a perfect example illustrating that she completely grasps the concept. The next day, however, she is confused as to why she is not
making a gift to her son in the will and instead is creating trusts for
the grandchildren.
(ii) For some very old clients, the problem of grasping and
remembering complicated estate planning proposals is
compounded by a loss of vision and hearing. During the meeting
with the planner, clients can appear to have difficulty
understanding what is being discussed when in reality, they are
sound of mind. The problem is that they cannot comprehend what
they haven't heard or can't read. Planners must therefore be alert to
physical limitations that may make a very old client seem unable to
grasp even basic planning concepts. 7
Model Rules of Professional Conduct ("MRPC") Rule 1. 14 — Client with Diminished
Capacity
(1) MRPC 1. 14 - Client with Diminished Capacity
DELIRIUM AND DEMENTIA, http: // www. merck. corn/mmpe/sec 16/ch213/ch213a. html (visited March 2 2007); MEDLINEplus Medical Encyclopedia, Dementia, http: //www. nlm, nih. gov/medlineplus/ency/article/
000739, htm (visited February 22, 2005).
Icl.
See generally Lawrence A. Frolik, The Challenges of Estate Planning with a Very Old Client, 34 ESTATE
PLANNING JOURNAL NO. 5 (May 2007).
Icl.
References are to the MRPC as opposed to particular states' Rules of Professional Conduct; all states but
California have adopted the MRPC. Most states have adopted the Comments to the MRPC. California has not
adopted the Model Rules but the proposed California Rules of Professional Conduct include Comments,
Attached as an exhibit to this outline is a list of the status of states' adoption of the MRPC and the Comments
thereto.
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(a) When a client's capacity to make adequately considered decisions in
connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(i) Comment (1) to Rule 1. 14 provides that a normal client-lawyer relationship is based on the assumption that the client, when
properly advised and assisted, is capable of making decisions about
important matters.
(ii) Comment (1) to Rule 1. 14 further provides that while a severely incapacitated person may have no power to make legally binding
decisions, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters
affecting the client's own well-being.
(iii) Comment (1) to Rule 1. 14 provides this example; children as
young as five or six years of age, and certainly those age ten or
twelve, are regarded as having opinions that are entitled to weight
in legal proceedings concerning their custody. In contrast, it is
recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal
protection concerning major transactions.
(iv) Above all, Comment (1) to Rule 1. 14 provides that just because a
client suffers a disability does not diminish the lawyer's obligation
to treat the client with attention and respect,
(b) When the lawyer reasonably believes that the client has diminished
capacity, is at risk of substantial physical, financial or other harm unless
action is taken and cannot adequately act in the client's own interest, the
lawyer may take reasonably necessary protective action, including
consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
(i) Comment (3) to Rule 1. 14 provides that when the presence of other
persons is necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the
attorney-client evidentiary privilege.
(ii) Comment (3) to Rule 1. 14 introduces a "caveat" to the above
statement by providing that regardless of the need for assistance, the lawyer must keep the client's interests foremost and, except for
such protective action, must to look to the client, and not family
members, to make decisions on the client's behalf.
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(iii) If the client already has a legal representative, i. e. , a guardian,
Comment (4) to Rule 1. 14 states that the lawyer should ordinarily
look to the representative for decisions on behalf of the client.
(iv) Comment (4) to Rule 1. 14 issues the following caveat: if the
lawyer represents the guardian as distinct from the ward, and is
aware that the guardian is acting adversely to the ward's interest,
the lawyer may have an obligation to prevent or rectify the
guardian's misconduct.
(v) Comment (5) to Rule 1. 14 provides a non-inclusive list of "protective measures" (by stating that such measures "could include" ), which are as follows; consulting with family members,
using a reconsideration period to permit clarification or
improvement of circumstances, using voluntary surrogate decision-
making tools such as durable powers of attorney or consulting with
support groups, professional services, adult-protective agencies or
other individuals or entities that have the ability to protect the
client.
(vi) In taking any protective action, the lawyer should be guided by such factors as the wishes and values of the client to the extent
known, the client's best interests and the goals of intruding into the
client's decision-making autonomy to the least extent feasible,
maximizing client capacities and respecting the client's family and
social connections,
(c) Information relating to the representation of a client with diminished
capacity is protected by Rule 1. 6, entitled "Confidentiality of Information. " When taking protective action pursuant to paragraph (b), the
lawyer is impliedly authorized under Rule 1. 6(a) to reveal information
about the client, but only to the extent reasonably necessary to protect the
client's interests. 10
(i) Comment (8) to Rule 1. 14 provides that disclosure of the client's
diminished capacity could adversely affect the client's interests; for
example, raising the question of diminished capacity could, in
some circumstances, lead to proceedings for involuntary
commitment.
The ACTEC Commentaries on this point cite to South Dakota Bar Association Opinion 2007-3, wherein an
elderly client told the attorney that under no circumstances is anyone to see the client's Will; subsequently, the
client's attorney-in-fact requested a copy. The attorney visited the client who reiterated the request that no one
see the Will. It was held that could not provide a copy to the attorney-in-fact, in that absent a guardianship, the
attorney-in-fact could always be revoked by the client.
A discussion of MRPC 1. 6 is beyond the scope of this outline; however, since cited in MRPC 1, 14(c), copies of
MRPC 1, 6 and the comments thereto are attached at the end of this outline.
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(ii) Comment (8) to Rule 1. 14 also provides that information relating to the representation is protected by Rule 1. 6, so, therefore, unless authorized to do so, the lawyer may not disclose such information
(query whether this is a permissive "may" or a mandatory "may" to mean "shall" ).
(iii) When taking protective action pursuant to paragraph (b), Comment
(8) to Rule 1. 14 advises that the lawyer is impliedly authorized to make the necessary disclosures, even when the client directs the
lawyer to the contrary; nevertheless, given the risks of disclosure,
paragraph (c) limits what the lawyer may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative.
(iv) Comment (8) to Rule 1. 14 concludes by stating that at the very
least, the lawyer should determine whether it is likely that the
person or entity with whom the lawyer consulted will act adversely
to the client's interests before discussing matters related to the
client; restating the obvious, Comment (8) to Rule 1. 14 espouses that the lawyer's position in such cases is an unavoidably difficult
one,
(2) MRPC 1. 14 and Inability to Create a Client Relationship
(a) Comments (9) and (10) to Rule 1. 14 advise as to those emergency situations where the lawyer may be required to provide emergency legal
assistance and be unable to create an actual attorney-client relationship.
(b) Comment (9) to Rule 1. 14 provides that a lawyer may take legal action on
behalf of such a person even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that
person's behalf has consulted with the lawyer.
(c) Comment (9) to Rule 1. 14 further provides that even in such an
emergency, however, the lawyer should not act unless the lawyer
reasonably believes that the person has no other lawyer, agent or other
representative available,
(i) The lawyer should take legal action on behalf of the person only to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm.
(ii) A lawyer who undertakes to represent a person in such an exigent situation has the same duties under these Rules as the lawyer
would with respect to a client.
(d) Noting the situation whereby a lawyer may be meeting with a potential
client and is unable to affirm an attorney-client relationship, Comment
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(10) to Rule 1. 14 states that a lawyer who acts on behalf of a person with seriously diminished capacity in an emergency should keep the confidences of the person as if dealing with a client, disclosing them only to the extent necessary to accomplish the intended protective action.
(e) Comment (10) to Rule 1. 14 further provides that the lawyer should disclose to any tribunal involved and to any other counsel involved the nature of his or her relationship with the person.
(f) Under Comment (10), to Rule 1. 14 the lawyer should take steps to regularize the relationship or implement other protective solutions as soon as possible.
(g) Finally, Comment (10) to Rule 1. 14 advises that normally, a lawyer would
not seek compensation for such emergency actions taken. The use of "normally" would not bar the lawyer from seeking such compensation, but it may be argued that in most instances, this practice would be "frowned
upon. "
C. Testamentary Capacity
(1) An individual has "testamentary capacity" when he or she understands or is able
to comprehend the following four elements, often-referred to as a "Four-Pronged Test":
(a) The nature and extent of his or her property.
(i) At a minimum, the testator should possess a general knowledge of his or her assets.
(ii) The level of knowledge required regarding his or her holdings varies in that the testator need not know the exact fair market value
of his or her property, nor be able to list all of his or her assets.
(b) The natural objects of his or her bounty.
(i) The term "natural objects" means those persons related to the testator by ties of blood or affection who would naturally be thought of as having a stake in the testator's estate.
Elena Marty-Nelson, Angela Gilmore and Eloisa Rodriguez-Dod, Testamentary Capacity and Validity of 8'ills, Outline III. A. , BNA TAX MANAGEMENT PQRTFQLIos, EsTATEs, GIFTs, AND TRUsTs SERIEs, EsTATE
PLANNING/BUSINESS PLANNING, 824-2ND, Tax Management, Inc. 2012; see also Frolik at 5, citing Estate of Romero, 126 P. 3d 228 (Colo, App, , 2005) wherein five elements are listed, namely, that the testator, (a) understands the nature of the act, (b) knows the extent of his or her property, (c) understands the proposed
testamentary disposition; (d) knows the natural objects of his or her bounty; and (e) the will represents the
person's wishes.
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(ii) The testator is not required under this prong to leave anything in
the will to the natural objects of his or her bounty, but he or she is
required to liow who they are.
(iii) This element is apparently satisfied if the testator understood who
would naturally be expected to receive his or her property at his or
her death.
(iv) Note that the specificity with which the testator must know the
names and the relationship to him or her of the natural objects varies considerably.
(c) The disposition he or she wishes to make of his or her estate.
(i) The testator is required to dispose of his or her property according
to some plan formed in his or her mind.
(ii) The testator must clearly know to whom he or she intends to give
his or her property through the will.
(d) The act of making a will.
(i) The testator must know that the document he or she is signing will
serve to dispose of his or her property at his or her death according
to the directions therein.
(ii) The testator must be aware that the function of a will is to
distribute his or her property after his or her death, and he or she
must understand that he or she is about to execute such a
document.
(iii) What about a revocable trust?
(A) In Florida, the standards for a will and a revocable trust are
similar — the standard in Florida is set forth in Fla. Stat.
$ 736. 0402(1) (which is based on Uniform Trust Code
$ 402(a)(1), which provides that a trust is created only if the settlor has the capacity to create a trust.
(B) The focus is on testamentary dispositions, so the standard
should be the same as a Will. '
(2) A testator/testatrix must understand how these elements are related so that he/she
can express the method of disposition of property. '
Query whether the inter-vivos provisions are subject to the same standard as an inter-vivos gift? This is not
answered but is a valid question.
Dayton, Guare k Wood, ) 32, 9,
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(3) The law favors a finding of sufficient testamentary capacity; further, testamentary
capacity is the lowest level of capacity needed to act. '
(a) In Pennsylvania, less capacity is required to make a valid will than is
required to transact ordinary business. 15
(b) In Florida, testamentary capacity has been found where the testator may
frequently be intoxicated, use narcotics, have an enfeebled mind, failing
memory, or vacillating judgment. " »16
(c) Pursuant to New York Surrogate's Court Surrogate Preminger, "It is
hornbook law that less mental capacity is required to execute a will than
any other legal instrument. The reasons for this lower standard stem from
the concept of a will as the testator's last act, and from considerations of fairness which militate against depriving elderly or infirm testators of the
right to dispose of their property. . . . Additionally a will is not the product
of a bilateral transaction between putative antagonists and does not require
the sharpness of mind of persons involved in business transactions. " »17
(4) Capacity when you least expect it — the "lucid interval. "
(a) Even if an individual is adjudicated to be incapacitated, testamentary
capacity may still be present as a result of a "lucid interval, " which can be
defined as an interval of apparent mental clarity (or at least capacity) for
an otherwise incapacitated individual. 18
(b) If a will is executed during a lucid interval, it is valid despite evidence that
the individual exhibited significant loss of mental capacity near the time of the execution of the will.
(c) While the doctrine may appear to be a bit dubious as a description of mental capacity, it may be applied to defend a will as valid even if the will
were signed by a person suffering from dementia.
(d) The key is to have the person sign the will during a period when he or she
understands what is occurring.
Frolik at 5.
Marty-Nelson, Gilmore and Rodriguez-Dod, III. A. 4. b, (1), citing In re Estate of Brantlin er, 210 A. 2d 246, 252
(Pa. 1965).
Marty-Nelson, Gilmore and Rodriguez-Dod, III. A. 4, c. (1), citing
3rd Dist, Ct. App. 1997) , 702 So. 2d 1273, 1286 (Fla.
~ln re Goldber, 153 Mtac. 2d 560, 582 N. Y. S. 2d 617, 620 (Sur. Ct. N. Y. County 1992), cs cited in Mary S.
Croly, Basic Estate Planning for the Elderly Facing Health Care /3/eeCk/Wills and Will Execution, PRACTISING
LAW INSTITUTE, NEW YORK PRACTICE SKILLS COURSE HANDBOOI& SERIES, 14 ANNUAL ELDER LAW
INSTITUTE: BASIC ELDER LAW (September 2002), cited as 124 PLI/NY 51, 320 PLI/Est. 51.
ld.
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(e) Courts recognize a distinction between specific and general competency; "specific" competency is competency that can occur during a single lucid moment and can be transient. As a result, assessment of testamentary capacity can be difficult. '
(5) Incapacity when you least expect it — the "insane delusion. "
(a) An insane delusion exists when a "person persistently believes supposed facts that have no real existence, and so believes such supposed facts against all evidence and probabilities and without any foundation or reason for the belief, and conducts himself as if such facts actually existed. " »20
(b) Accordingly, if there is any factual basis for a testator's otherwise irrational belief, the courts will not find an insane delusion.
(c) Rather than focusing on insane delusions as the exception to a finding of testamentary capacity, Colorado uses the concept of an insane delusion as
the primary test for capacity - the insane delusion test states that "a person lacks testamentary capacity when he suffers from an insane delusion that
materially affects his disposition in the will. " '
(d) Examples of insane delusions.
(i) Pennsylvania - Power v. Overholt 22
(A) The testator was determined to have been operating under
an insane delusion when she disinherited her niece, a natural object of her bounty, based on the unjustified belief that the niece had stolen certain silver articles from her.
(B) The court stated that the testator, ". . . believed that plaintiff had stolen from her is beyond question under the evidence. That no sane mind could entertain this belief in view of the circumstances is too clear for controversy. . . . That this delusion was a potent factor in her mind when she sought to dispose of her property by the paper in question would seem to be plain. "
(ii) Florida — In re Estate of Hodtum
Dayton, Guare k Wood, ) 32. 9.
Marty-Nelson, Gilmore and Rodriguez-Dod, III. A. d. 2, citing In re Solomon's Estate, 53 N. W, 2d 597, 601 (Mich. 1952).
Marty-Nelson, Gilmore and Rodriguez-Dod, III. A. 4, d. (2), citing Breeden v. Stone, 992 P. 2d 1167, 1173 (Colo. 2000) (en banc).
Marty-Nelson, Gilmore and Rodriguez-Dod, III. A. 4. b. (2), citing 101 A. 733 (Pa. 1917).
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(A) In Hodtum, the testator originally left a remainder of his estate to a Masonic Lodge of which he was a member, but several months later, after developing a belief that he had been expelled from the Masons, the testator attempted to execute a new will in which he planned to substitute the Ohio Mechanics Institute for the Masons.
(B) After the testator's original attorney refused to draft the new will, on the basis that the testator lacked the requisite capacity, the testator then acquired another attorney to draft a will that would disinherit the Masons.
(C) At trial no evidence offered by any doctor or other authority as to the testator's mental state; thus, the presiding judge relied on testimony of witnesses who insisted there was no basis for the testator's belief.
(D) The Florida Second District Court of Appeal, in affirming the county court's rejection of the will, stated that there was "no evidence to establish any basis for the decedent's belief that he had been expelled from the Masons" thereby reaffirming the proposition that if the testator had any reason whatsoever to support a belief that he had been expelled from the Masons, the court would not have found
him to be suffering from an insane delusion.
(e) Sometimes, an insane delusion is not enough to overcome testamentary
capacity — Breeden v. Stone. 24
(i) The testator died after he was involved in a high profile hit and run accident that killed the driver of the other vehicle. Breeden died of a self-inflicted gunshot wound. Breeden left a handwritten note— which was a holographic will — leaving everything to Sydney Stone; this will varied from the dispositive provisions from his earlier will that benefited other persons.
(ii) Breeden had used alcohol and cocaine for several years before his death, and also suffered from mood swings — in particular, he was "worried excessively about threats against his and his dog's life. "
(iii) The threats included the belief that there were listening devices in his home and assassination plots against him and his dog.
Marty-Nelson, Gilmore and Rodriguez-Dod, III. A. 4. d. (2), citing 267 So. 2d 686 (Fla. 2nd Dist, Ct. App, 1972)
Marty-Nelson, Gilmore and Rodriguez-Dod, III. A. 4. d. (2), citing Breeden.
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(iv) Despite the apparent insane delusions, the trial court upheld the
Will on the basis that the testator possessed the requisite testamentary capacity,
(v) The court reached this conclusion, in part, because the testator: "(1) could index the major categories of the property comprising his estate; (2) llew his home and rental addresses; and (3) identified the devisee by name and provided her current address. "
(vi) In upholding the probate court's finding, the Colorado Supreme Court stated that "the insane delusions from which the decedent
was suffering did not materially affect or influence his
testamentary disposition. "
(6) Not all "capacities" are created equal — lack of capacity for some transactions may
not necessarily be lack of capacity for others.
(a) Capacity when a Guardianship is in Effect
(i) Courts not infrequently conclude that a person who is subject to a
conservatorship or guardianship nevertheless has the necessary
capacity to execute a valid will.
(ii) For example, in Estate of Mann, 184 Cal. App . 3d 593, 229 Cal,
Rptr, 225 (1986), the court stated that, "The express basis of the
conservatorship was decedent's inability to manage her person and
property. Inability to transact ordinary business does not establish
testamentary incapacity. " &&25
(b) That clients may have differing degrees of capacity underlies the statement
in Comment [1] to MRPC Rule 1. 14 that, "a client with diminished
capacity often has the ability to understand, deliberate upon, and reach
conclusions about matters affecting the client's own well-being. "
(c) Testamentary Capacity vs. Donative Capacity
(i) States vary on whether "testamentary capacity" is the same as "donative capacity, " which is the capacity level required to make a
gift.
26
John R. Price and Samuel R. Donaldson, PRICE ON CONTEMPORARY ESTATE PLANNING, ) 1. 6. 11 (Wolters
Ikluwer 2011).
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(ii) Some courts have characterized "donative capacity" as having a lower or the same degree of capacity than "testamentary
capacity. " "
(iii) Other courts have held that donative capacity is similar to contractual capacity (which requires that the person contracting
bargain for and understand the consequences of his or her
actions).
(7) Burden of Proof for Capacity Challenges
(a) In most states, a presumption of testamentary capacity is met upon proof that the Will has been executed in conformity with state law,
(b) In most states, the burden for finding lack of testamentary capacity is
extremely high, as the burden for proving testamentary capacity is the
usual civil burden, which is carried by a fair preponderance of the credible
evidence. 29
(c) State Examples
(i) New York — burden stays on the proponent of the Will.
(A) Under New York law, the burden of establishing
testamentary capacity is always upon the proponent and the
proponent has on his side the presumption of testamentary
capacity. 30
(B) Once the presumption is rebutted by proof of incompetency, the proponent, to carry his burden of persuasion, must go forward with evidence that the Will
was executed during a lucid interval. 31
Dayton, Guare & Wood, II 32. 11, citing Fl nn v. Union Nat. Bank of S rin field, 378 S. W. 2d I (Mo. Ct. App,
1964), which states that "Courts in other states have specifically recognized a separate standard of mental
capacity for making gifts. Most courts have equated donative capacity with testamentary capacity . . . the
Missouri Court of Appeals stated that the 'capacity to make a gift is not as high or acute as the capacity to
engage in a business or arm's length transaction where each party thereto is engaged in getting advantage to
himself, instead of the simple satisfaction in having benefited one who is near and dear . . . '"
Id. , citing Jaffe v. Carroll, 35 Cal. App. 3d 53, 110 Cal. Rptr. 435 (2d Dist, 1973), which stated that the capacity
to make gift is the same as the capacity to make a contract.
Croly at II. H.
Id. , citing In re Preston, 113 AD. 732, 99 NYS. 312 02d Dept. 1906); ~In re Benewa, 272 AD. 463, 71 NYS, 361 (3d Dept. 1947).
Id. , citing Rollwa en v. Rollwa en, 63 N. Y. 504 (1876); American Seamen's Friend Soc' v. Ho er, 33 N. Y. 619 (1865);
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12
(ii) Florida — Burden shifts to the contestant of the Will
(A) The presumption of testamentary capacity is strong in
Florida; once the proponent of a will has established that it
was properly executed, the contestant has the burden of proving the absence of testamentary capacity, and such
burden must be sustained by a preponderance of the
evidence, 32
(B) Switch if adjudication occurs - if, however, the testator has
been adjudicated incompetent before execution of the will,
there is a presumption that the testator lacked capacity, and
in such a case, the burden is on the proponent of the will to establish by sufficient evidence the presence of testamentary capacity.
(C) If the order of the probate court is being appealed, the court
hearing the appeal will not overturn the probate court's
findings where there is substantial competent evidence to
support those findings, but will overturn a lower court
decision when it appears that the probate judge has mis-
apprehended the evidence as a whole. '"
(iii) Pennsylvania
(A) In Pennsylvania, a presumption of testamentary capacity arises upon proof that a will has been executed by two
subscribing witnesses; taking this further, where a will is
drawn by an attorney and formally executed, "the burden of proving testamentary incapacity is upon the contestants and
that burden can be sustained only by clear and strong or
compelling evidence of lack of testamentary capacity. "
(B) Moreover, the contestant must prove lack of testamentary
capacity "in a positive manner [and] not in a doubtful one, "
Marty-Nelson, Gilmore and Rodriguez-Dod, III. A. 4, c, (3), citing Cha man v. Cam bell, 119 So. 2d 61 (Fla. 2"
Dist. Ct. App. 1960); In re Wilmott's Estate, 66 So. 2d 465 (Fla. 1953); American Red Cross v. Estate of ~Ha nsworth, 708 So. 2d 602, 603 (Fto. 3"' Dist. Ct. App. I 998); Hendershaw v. Estate of Hendershaw, 763 So.
2d 482, 483 (Fla. 4" Dist, Ct. App. 2000).
Id. , ciring~Cha man; In re Estate of Sn iee, 247 So. 2d 488, 490 iFia. 2" Dist. Ct. App. 1971).
Id, , citing Hendershaw at 483.
Id. at III. A. 2, c. (3), citing In re Estate of Hastin s, 387 A. 2d 865, 867 (Pa. 1978), ; In re Estate of Kuzma, 408
A. 2d 1369 (Pa. 1979).
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13
and if such proof is met, the proponent of the will must
prove that it was executed during a lucid interval.
(C) Where a person is adjudicated a mental incompetent and
thereafter executes a will, the burden is shifted to the
proponent of the will to show by clear and convincing evidence that the testator possessed capacity at the time of the will's execution, which courts have described as "a daunting burden that can seldom be overcome. " »37
(I) Should this burden is satisfied by the proponent, the
burden of proof then shifts to the contestant to overcome the presumption.
(II) It is also clarified that the presumption of lack of capacity only attaches if an adjudication of lack of capacity precedes the execution of the will, and that
an adjudication of mental incompetence shortly
after the making of the will does not change the
burden. '
D. Undue Influence
(1) Generally.
(a) Illness may not be the only reason that clients may not fully comprehend
certain aspects of their estate plan in that their decisions may be unduly
influenced by others.
(b) Defined
(i) Black's Law Dictionary defines "undue influence" as "[c]oercion that destroys a testator's free will and substitutes another' s
objectives in its place. " ii39
(ii) Undue influence has been recognized as "one of the most
bothersome concepts in all the law, H and to prove undue influence,
the person seeking to set aside the transfer must show that the
undue influence was enough to "overpower the will of the grantor
Id. , ciii ng In re Schott Estate, 58 Pa. D. & C. 4th 533 (Pa. Com. Pl. 2001); ~In re An le, 777 A. 2d 114, 123 (Pa.
Super. Ct. 2001); ~In re Me ers, 189 A. 2d 852, 859 (Pa. 1963).
Id. , citing ~Hastin s; Estate of Vanont, 798 A. 2d 203, 209 (Pa. Super. Ct. 2002).
Id. , citing ~Hastin s at 1!67.
BLAcK's LAw DtcTtoNARv (8th ed. 2004) (definition of "Testamentary Capacity" ),
4478/99999-704 current/34345009v1
14
to the extent that he [was] prevented from voluntary action and
[was] deprived of free agency. "
(iii) New York defines two categories of undue influence; '
(A) One category is the gross, obvious and palpable type of undue influence which does not destroy the intent or will of the testator but prevents it from being exercised by force and threats of harm to the testator or others close to him.
(B) The other category is the insidious, subtle, and impalpable kind of undue influence that subverts the intent or will of the Testator and internalizes within his mind the desire to do that which is not his intent but the intent of another.
(2) "Undue Influence" as distinguished from "Testamentary Capacity"
(a) Because undue influence, like mental capacity, raises the question of whether an individual is acting freely, the two concepts are often confused. Although diminished mental capacity may contribute to a person's vulnerability to undue influence, the two are distinct, and
cognitive assessments cannot identify the presence of undue influence. 44
(b) Generally, a document procured by "undue influence" will generally not deem the entire document void, but just the particular provisions procured
by "undue influence"; lack of "testamentary capacity, " however, renders the entire document void.
(c) Thus, a client might decide to change the terms of her will to the benefit of an unlikely third party; her decision might be "her own" but still the
product of incapacity; for example, a client may add a substantial bequest to a neighbor who does nothing more than say "hello" to her each morning. Conversely, a fully capable client may fall victim to an
unscrupulous family member, health care provider, or other third party; for example, a "ne' er do well son" may return home to visit Mom in the
David W. birch, Balancing Discretion to Give and Undue Influence Concerns, 38 ESTATE PLANNING JOURNAL
NO. 8 (August 2011), citing Dukeminier, Sitkoff, and Lindgren, WILLS, TRUSTS, AND ESTATES (Aspen, 8th ed. , '. * . »), fI» supra note 4, quoting Anderson v. Lind ren, 157 P. 2d 687 (Colo. , 1945), and, see also, In re Will of Jones, 669 S. E. 2d 572 (N. C. 2008), citing In re Will of Turna e, 179 S. E. 332 (N. C. 1935).
Rohan, NEW YORK CIVIL PIU c ricE, VOL. 2, p. 3-57 (Matthew Bender), as cited by Croly at III, C,
Id. , citing , 276 A. D. 821, 93 N, Y. S. 2d 651 (4th Dept. 1949).
Id. , citing Matter of Burke, 82 A. D. 2d 260, 441 N. Y. S. 2d 542 (2d Dept 1981).
Dayton, Guare k Wood, I1 32. 5.
4478/99999-704 current/34345009v1 15
nursing home after a 20 year absence and suddenly Mom changes her Will
to leave such son the family house. '
(3) Typical circumstances providing an evidentiary basis for a finding of undue
influence in the will contest context include the following:
(a) Confidential Relationships
(i) The threshold issue of the existence of a confidential relationship is
a question of fact. 46
(ii) A common fact pattern involves a donor living with or relying on a
caretaker, often a family member or close friend, especially as the
donor's health and cognitive functions begin to decline,
(iii) A confidential relationship can exist, however, "whenever one
person, by acting or pretending to act for the benefit or in the
interest of another, gains the trust and confidence of the other
person (and, as a result, is put in a position to exercise influence
and control over the other). "
(iv) Case law examples
of common, confidential relationships include
the following;
(A) guardian and ward
(B) trustee and beneficiary
(C) agent and principal
(D) attorney and client
(E) doctor and patient
(F) nurse and patient
(6) pastor and parishioner"
(H) bank employee and bank customer'
birch at 29.
Kirch at 30.
Id, , citing Wade, WADE/PARICS COLORADO LAW Or WILLS, TRUSTS, AND FIDUCIARY ADMINISTRATION, II4. 20,
(CLE in Colo. , lnc. , 5th ed. 2005), quoting CJI-CIv, 34:15 (CLE ed. 2005).
Marty-Nelson, Gilmore and Rodriguez-Dod, III. B. I. a.
Sur. Ct, 1983).
4478/99999-704 current/34345009v1
16
(I) hospice volunteer and elderly patient"
(J) informal relationships formed from moral, social, domestic,
or purely personal relationships- 52
(K) relationships of blood, business, friendship, or association
in which one party reposes special trust and confidence in
the other who is in a position to have and exercise influence
over the first party'
(v) Friendship and family, including a parent/child relationship, is
sometimes not enough to be classified as "confidential. "
(A) Determination of a confidential relationship depends on the
amount of control exerted over the testator. Proof of the
additional elements of dominion and control are usually
necessary. 54
(B) Not every close relationship, of course, is a confidential
relationship. "Friendly relations or even intimacy of relationship present an entirely different question from
what is understood as a confidential relation in law. "
(vi) Spouses and Confidential Relationships
(A) Generally, spousal relationships are not considered
confidential or fiduciary in nature for purposes of determining whether undue influence was exerted. 56
(B) For example, in Florida, a husband/wife relationship does
not create a presumption of a confidential relationship- one appellate decision has stated that if a confidential
relationship between spouses were not exempted the undue
influence presumption, the presumption would arise in
nearly every case in which the spouse is a substantial
beneficiary, since the required active procurement would
almost always be present; thus, when the alleged influencer
See Owens v. Mazzei, 847 A. 2d 700 (Pa. Super, Ct. 2004).
See Madden v. Rhodes, 626 So, 2d 608 (Miss. 1993).
See Adickes v. Andreoli, 600 S. W, 2d 939, 946 (Tex, Civ. App. 1980).
See In re Estate of Haneber, 14 P. 3d 1088 (Kan. 2000),
Marty-Nelson, Gilmore and Rodriguez-Dod, III. B. I, a.
Id.
Id
4478/99999-704 current/34345009v1
17
is the spouse of the testator, undue influence must be proved directly rather than by use of the presumption.
'
(C) Some states, such as Georgia, have determined that spousal relationships could raise a presumption of undue
influence. " (D) Same-Sex Couple
(I) The question is whether a homosexual couple holding themselves out to be engaged in a committed relationship is deemed to be a "confidential relationship"
(II) Surprisingly, one court that addressed the question— Texas — answered this in the negative in that a same-sex relationship does not constitute a presumption of a confidential relationship as a matter of law. '
(E) Spouse as Attorney-in-Fact
(I) Where a person is not only the decedent's spouse, but also possesses the decedent's power of attorney, the spousal relationship may supersede the agency relationship created by the power of attorney, and,
depending on the state, the spouse might not be deemed to be involved in a confidential relationship with the decedent, even though those with a power of attorney are generally considered to have a confidential relationship with the person whose
power of attorney he or she possesses. 60
(II) No Confidential Relationship: Hamilton v. Hamilton '
Id. , citing Tar asian v. Watt, 402 So. 2d 471, 472 n. l (Fla. 3'" Dist. Ct, App. 1981). Note that the same standard
is also applied in Mississippi — see Genna v. Harrin ton 254 So. 2d 525 (Miss. 1971)
Id. , citing Cook v. Huff, 552 S. E. 2d 83 (Ga. 2001).
See E~vans v. Ma, 923 SW26 712 (Tx. Court of Appeals, 1996). The author uses "surprisingly" because Texas
prohibits same sex marriage and acknowledgments both by statute and within the Texas Constitution — in other
words, in case the Constitutional prohibition leaves any doubt as to where the laws of Texas fall on this issue,
the statutes remove all doubt from the equation, See Texas Constitution, Article 1, $ 32, Texas Family Code, Title 1, Chapter 2, II 2, 001 and Texas Family Code, Title 1, Chapter 6, II 6. 204.
60
Id. , citing 858 N. E. 2d 1032 (Ind. Ct. App. 2006).
4478/99999-704 current/34345009v1 18
(01) The testator's new wife, who was also the testator's attorney-in-fact with power of attorney, was not presumed to have a confidential relationship with the testator.
(02) The probate court decided that, although the wife was the decedent's attorney-in-fact, which normally would create a fiduciary relationship, her status as spouse took precedence over her status as attorney-in- fact,
(03) The court reasoned that to hold otherwise "would discourage spouses from choosing one another as power of attorney, when often times a spouse is in the most genuine position of trust to make financial decisions for an incapacity spouse. "
(III) Confidential Relationship: Medlock v. Mitchell
(01) Four months after executing a will in 1998 leaving his estate equally to two of his five children, the testator married Kay Medlock, and, on the same day, executed a revocable living trust which would terminate in 10 years leaving the principal to the same two children. After being diagnosed with lung cancer in 2003, the testator executed a new will leaving the entire estate to Kay, and executed an amendment to trust leaving the
majority of the trust to Kay. Shortly thereaAer, the testator died.
(02) Included in the documents purporting to give Kay control over the testator's affairs was his power of attorney.
(03) The probate court determined that a confidential relationship existed — on appeal, Kay's son (Kay had since died) argued that a confidential relationship could not be presumed between a husband and wife; nevertheless, the appellate court stated that the trial court applied the proper standard in Arkansas which is that a husband/wife
relationship is a confidential relationship;
Id. , citing 95 Ark. App. 132, 234 S. W. 3d 901 (Ark. App. 2006).
4478/99999-704 current/34345009v1 19
(vii)
when coupled with the fact that the testator had given Kay his power of attorney, the facts were clear that a confidential relationship existed.
In most states, the mere presence of a confidential relationship is not enough to prove undue influence; for example, evidence showing only an opportunity to influence and a substantial benefit under the will does not show the exercise of undue influence.
(viii) Caution must be exercised in applying the presumption of undue
influence based solely on the existence of a fiduciary or confidential relationship, as well as in finding the existence of a confidential relationship giving rise to the presumption in the first instance. Some states do not allow a trier of fact to presume "that a person used undue influence on another person solely because they were in a fiduciary or confidential relationship. " »64
(ix) The challenger must show more than just a close relationship - he
or she must show that a confidential relationship existed in fact, which includes circumstances making the donor susceptible to influence.
(A) If a party shows that the donor remained strong-willed or that the donor's mental facilities were not impaired at the time of the transfer, neither the presumption nor even an
evidentiary "permissible inference" of undue influence
possibly arising from the relationship likely will be sufficient to set aside the transfer.
(B) In other words, there must be some element of domination
to the relationship.
(b) Fiduciary relationship
(i) While this would encompass the standard trustor/trustee scenario, it may also include the holder of a durable power of attorney.
(ii) Many states would find that a beneficiary who held the testator's
power of attorney was in a confidential or fiduciary relationship
Kirch at 31, citing Li scomb v. Youn, 672 S. E. 2d 649 (Ga. 2009).
Id. , citing Furrow v. Helton, 13 So. 3d 350 (Ala. 2008) (which requires a will contestant to show (1) a confidential relationship, (2) influence that was dominant and controlling, and (3) undue activity by the
dominant party in procuring execution of the will).
Id. at 31-32.
4478/99999-704 current/34345009v1 20
with the testator, while at least one other court has held that an
unexercised power of attorney alone is not sufficient.
(c) Other Factors:
(i) Undue influence present at will execution.
(ii) A relationship between the attorney drafting the will and the
influencer,
(iii) Knowledge of the contents of the will by the influencer.
(iv) An influencer instructing the preparation of a will, making first
contact with the attorney, or meeting alone with the attorney
drafting the will.
(v) An influencer paying the drafting attorney.
(vi) An influencer securing witnesses to the will.
(vii) An influencer keeping the will after execution.
(viii) The execution of the will being kept a secret from potential
challengers,
(ix) Old age of the donor.
(x) An opportunity and motive for the exercise of undue influence.
(xi) Weak physical and mental health of the donor.
(xii) A beneficiary caring for the donor during the end of the donor's
life.
(xiii) A beneficiary treating a new will execution as an urgent matter.
(xiv) A dramatic change in the testamentary disposition of assets.
(4) If undue influence circumstances are present, specific factors that may support a
finding of undue influence are as follows: . 69
Id, , citing Allard v. Johnson, 724 N, W. 2d 331, 332 — 33 (N. D. 2006) (holding an agent under a durable power of
attorney creates a confidential relationship with fiduciary responsibilities to the agent); In re Estate of Fritts, 906
A. 2d 601, 608 (Pa. Super. Ct. 2006) (citation omitted) (holding the clearest indication of a confidential
relationship is that an individual has given power of attorney over her savings and finances to another party); In
re Estate of Duebendorfer, 721 N. W. 2d 438, 445 (S, D. 2006) (holding a fiduciary relationship exists whenever a
power of attorney is created); M W '
ht, 854 N. E. 2d 57, 60 (Ind. Ct, App. 2006),
Id. , citing Childress v. CuiTie, 74 S. W. 3d 324, 329 (Tenn. 2002).
Id.
4478/99999-704 current/34345009v1
21
(a) Old age.
(b) Physical and mental wealmess.
(c) The person signing the paper is in the home of the beneficiary and subject
to his or her constant association and supervision,
(d) Others have little or no opportunity to see the person executing the
instrument.
(e) The will is different from and revokes a prior will.
(f) The will is made in favor of one having no blood ties.
(g) The will disinherits the natural objects of the drafter's bounty.
(h) The beneficiary has "actively procured" the will's execution.
(i) As to "active procurement, " a major decision discussing factors
involved in "active procurement" is In re Car enter's Estate. 70
tii) In ~Car enter, the Florida Supreme Court cited seven, non-
exclusive criteria in which "active procurement" may be found;
such criteria are: , 71
(A) presence of the beneficiary at the execution of the will;
(B) presence of the beneficiary on those occasions when the
testator expressed a desire to make a will;
(C) recommendation by the beneficiary of an attorney to draw
the will;
(D) lmowledge of the contents of the will by the beneficiary
prior to execution;
(E) giving of instructions on preparation of the will by the
beneficiary to the attorney drawing the will;
(F) securing of witnesses to the will by the beneficiary; and
(6) safekeeping of the will by the beneficiary subsequent to
execution.
Kirch at 30.
253 So. 2d 697 (Fla, 1971)
Id. at 702.
4478/99999-704 current/34345009v1
22
(5) Burden of Proof
(a) The burden of proving undue influence is on the objectant.
(i) Some states, however, presume the existence of undue influence when certain criteria are met.
(ii) For instance, in Florida, a presumption of undue influence arises if the objectant can show that influence was exerted by a person who
was a substantial beneficiary under the will, occupied a confidential relationship to the decedent, and was active in
procuring the will. 73
(b) Shifting of the Burden
(i) The circumstances under which the burden of proof is shifted is a
fairly complicated and complex topic as the various state appellate courts have struggled mightily with this issue without a great deal
of consensus. 74
(ii) Some states, such as Florida, shift the burden to the proponent of the will to prove lack of undue influence such that if the defendant
comes forward with no evidence to rebut this presumption, the
challenge should prevail because the plaintiff, as a matter of law,
has shifted the burden. " (iii) The enactment of F. S. $733. 107 in 2002 shifted the approach taken
by Florida with respect to the burden of proof.
(A) Prior to 2002, the Florida rule was set forth in by the Florida Supreme Court in the ~Car enter decision,
(B) In deciding against a shift of the burden of proof, the
Florida Supreme Court stated: "We do not think that these
considerations [of the factors regarding undue influencet
require that the burden of proof or risk of non-persuasion
be shifted onto the beneficiary. Because it is frequently as
difficult to disprove undue influence as to prove it, the
practical effect of shifting the burden of proof is to raise the
Lisa M. Stern and Leonard S. Baum, Implement Strategies to Help Guard Against Will Contests, 37 ESTATE
PLANNING JOURNAL NO. 6 (June 2010), at 22.
Id.
Ronald R. Volkmer, Issues Presented in Will Contest Cases, 38 ESTATE PLANNING JOURNAL NO. 7 (July 2011),
p 44
Eunice L. Ross and Thomas J. Reed, WILI. CONTESTS (2nd Ed, , updated June 2011), II 7:13; see also Stern and
Baum at 22, citing FLORIDA STATUTES II 733, 107(2), and Kirch at 32.
4478/99999-704 current/34345009V1
23
presumption virtually to conclusive status and require a finding of undue influence, as happened in the case sub
judice. Thereby, much of the discretion of the trial judge to evaluate and weigh the evidence before him is lost, and
with it one of the most valuable services we call on trial
judges to perform in non-jury cases. We are unable to agree with any theory which vests great discretion in the trier of fact in other kinds of cases but ties his hands in will contest cases. "
(C) In setting forth the position on the issue, the Florida Supreme Court continued by stating: "The better rule, enunciated by his Court in Leonetti v. Boone, supra, shifts
to the beneficiary only the burden of coming forward with a reasonable explanation for his or her active role in the decedent's affairs, and specifically, in the preparation of the
will, and we so hold. Such a result comports with what we
conceive to be the intent of Fla. Stat, s 732. 31, F. S. A. , in
providing that the burden of proof in will contests shall be on the contestant to establish the facts constituting the
grounds upon which the probate of the purported will is
opposed.
(D) The Florida Supreme Court concluded its analysis by stating: "Our conclusion here has the additional benefit of lending greater credence to the traditional view in Florida that a properly executed will should be given effect unless
it Clearly appears that the free use and exercise of the testator's sound mind in executing his will was in fact prevented by deception, undue influence, or other means. . . .
It has been said that mere suspicion and conjecture cannot
constitute a basis on which a will may be declared invalid
on the ground of undue influence. . . . It is apparent that this
rule is not compatible with the requirement that the
proponent of a will disprove by a preponderance of the
evidence the existence of undue influence. " »78
(iv) Other states maintain the former Florida position, which is that the
burden of proof stays with the plaintiff, but that the burden of
~Car enter at 703-704.
Id. at 704.
Id.
4478/99999-704 current/34345009v1
24
going forward with the evidence shifts to the proponent of the will.
(v) California is a state where the burden shifts upon a presumption of undue influence; however, an additional method under which a burden can shift is if the alleged influence occurs as a result of a business transaction between a husband and wife; where a husband and wife are involved, California Family Code Section 721 states that there is a presumption of undue influence in interspousal transactions when one spouse is advantaged over the other. ' 80
(6) Restatement (Third) of Property Approach
(a) The Restatement (Third) of Property — Wills 2, Other Donative Transfers (the "Restatement" ), in Section 8. 3, provides as follows: '
") 8. 3 Undue Influence, Duress, Or Fraud
(a) A donative transfer is invalid to the extent that it was procured by undue influence, duress, or fraud.
(b) A donative transfer is procured by undue influence if the wrongdoer exerted 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.
(c) 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.
(d) A donative transfer is procured by fraud if the wrongdoer knowingly or recklessly made a false representation to the donor about a material fact that was intended to and did lead the donor to make a donative transfer that the donor would not otherwise have made. "
(b) Under General Comment (a) to $ 8. 3 of the Restatement, the burden of proof is maintained with the party contesting the validity of a donative transfer.
Ross and Reed at II 7. 13; see Footnote 21, citing cases from Alabama, Arkansas, Delaware, California, Illinois, Missouri, New Jersey, New Mexico, Pennsylvania, Oklahoma Tennessee, Utah, Washington, and Uermont.
Eric M, Tokuyama, Trust Litigation — Avoidable or Inevitable?, PRACTICING LAW INSTITUTE, TAX LAW AND
ESTATE PLANNING COURSE HANDBOOK SERIES, 37" ANNUAL ESTATE PLANNING INSTITUTE (September- October 2006), cited as 339 PLI/Est. 247.
Restatement (THIRD) OF PROPERTY {WILLS K DON. TRANS. ), II 8. 3 (2003). A copy of $ 8. 3 and the Comments
thereto are attached to this outline.
4478/99999-704 current/34345009v1 25
(c) General Comment (e) to $ 8, 3 of the Restatement provides that in the
absence of direct evidence of undue influence, circumstantial evidence is
sufficient to raise an inference of undue influence if the contestant proves
that,
(i) The donor was susceptible to undue influence;
(ii) The alleged wrongdoer had an opportunity to exert undue
influence;
(iii) The alleged wrongdoer had a disposition to exert undue influence;
and
(iv) There was a result appearing to be the effect of the undue
influence.
(d) General Comment (f) to $ 8. 3 of the Restatement presumes that undue
influence is present if both a confidential relationship exists and there
were "suspicious" circumstances surrounding the preparation, formulation,
or execution of the donative transfer, whether the transfer was by gift,
trust, will, will substitute or a donative transfer of any type.
(i) The effect is to transfer to the proponent the burden of presenting
evidence, but not the burden of persuasion.
(ii) If the proponent does not present evidence rebutting the
presumption of undue influence, a judgment of undue influence
should be ordered as a matter of law.
(e) General Comment (g) to $ 8. 3 of the Restatement defines "confidential
relationship" as one that embraces three sometimes distinct relationships — fiduciary, reliant, or dominant-subservient.
(i) "Fiduciary" relationship is one in which the confidential
relationship arises from a settled category of fiduciary obligation.
(ii) "Reliant" relationship is a question of fact under which the
contestant must establish that there was a relationship based on
special trust and confidence, for example, that the donor was
accustomed to be guided by the judgment or advice of the alleged
wrongdoer or was justified in placing confidence in the belief that
the alleged wrongdoer would act in the interest of the donor;
examples might include the relationship between a financial
adviser and customer or between a doctor and patient.
(iii) "Dominant-Subservient" relationship is a question of fact under
which the contestant must establish that the donor was subservient
to the alleged wrongdoer's dominant influence; such a relationship
4478/99999-704 current/34345009v1
26
might exist between a hired caregiver and an ill or feeble donor, or between an adult child and an ill or feeble parent.
(iv) General Comment (g) aclmowledges that in any particular case, these three relationships might overlap.
(f) General Comment (h) to ) 8. 3 of the Restatement provides that there must also be "suspicious circumstances" surrounding the preparation, execution, or formulation of the donative transfer.
(i) Suspicious circumstances raise an inference of an abuse of the confidential relationship between the alleged wrongdoer and the donor.
(ii) In evaluating whether suspicious circumstances are present, all relevant factors may be considered, including:
(A) The extent to which the donor was in a weakened condition, physically, mentally, or both, and therefore susceptible to undue influence;
(B) The extent to which the alleged wrongdoer participated in the preparation or procurement of the will or will substitute
(i. e. , a revocable trust);
(C) Whether the donor received independent advice from an
attorney or from other competent and disinterested advisors in preparing the will or will substitute;
(D) Whether the will or will substitute was prepared in secrecy or in haste;
(E) Whether the donor's attitude toward others had changed by reason of his or her relationship with the alleged wrongdoer;
(F) Whether there is a decided discrepancy between a new and
previous wills or will substitutes of the donor;
(G) Whether there was a continuity of purpose running through former wills or will substitutes indicating a settled intent in
the disposition of his or her property; and
(H) Whether the disposition of the property is such that a reasonable person would regard it as unnatural, unjust, or unfair; for example, whether the disposition abruptly and
without apparent reason disinherited a faithful and
deserving family member.
4478/99999-704 current/34345009v1 27
E. Diminished Capacity and Conflicts of Interest with Counsel Under Dispositive Instruments
(1) In some instances, elderly clients may feel such an affinity to their lawyer where
they wish to benefit the lawyer or the lawyer's causes in the testamentary
documents.
(2) If the bequest is not present in prior documents, questions of undue influence
and/or conflict of interest may arise.
(a) For example, suppose that a substantially wealthy client has lived in New
York his entire life. Client has not only donated significant amounts to New York City based charities but has served for extended periods of time
on the Board of Trustees of five such charities (the "5 Charities" ). Client's
testamentary documents divide his estate 50% in equal shares to his two
children and 50% to be divided among the 5 Charities.
(b) In 2009, when the client is 87 years old and failing health, client
permanently moves to Florida in hopes that his body will react better to
the warmer weather.
(c) Client meets with a Florida based estate planning lawyer and has his estate
planning documents revised. New additions include a significant bequest
to the estate planner as well as the addition of a new Florida based charity
to the 5 Charities, to which the client has never donated any funds;
coincidentally, the attorney is on the Board of Trustees of such new
charity and is its President of Fund Raising.
(d) Questions are raised by the sudden inclusion of the new bequests.
(3) As to conflicts of interest, MRPC 1. 8(c) provides as follows:
"Rule 1. 8 Conflict Of Interest: Current Clients: Specific Rules
(c) A lawyer shall not solicit any substantial gift from a client,
including a testamentary gift, or prepare on behalf of a client an
instrument giving the lawyer or a person related to the lawyer any
substantial gift unless the lawyer or other recipient of the gift is related to
the client, For purposes of this paragraph, related persons include a
spouse, child, grandchild, parent, grandparent or other relative or
individual with whom the lawyer or the client maintains a close, familial
relationship. "
(4) Lawyers continue to ignore this conflict of interest despite the clear prohibition
contained in the MRPC, the case law interpreting the MRPC, and clear state Code
of Professional Conduct conflict of interest provisions imposing discipline or
4478/99999-704 current/34345009V1
other sanctions (such as voiding the instrument) when a lawyer prepares a will or trust providing for a substantial gift or bequest to the lawyer.
'
(5) Unlike other conflict of interest provisions of the MRPC, Rule 1. 8(c) is not subject to client waiver. "
(6) State Statutory Law:
(a) Not many states have addressed this issue.
(b) Texas.
Texas Probate Code ) 58b provides as follows:
"$ 58b. Devises and Bequests That Are Void
(a) A devise or bequest of property in a will is void if the devise or bequest is made to:
(1) an attorney who prepares or supervises the preparation of the will;
(2) a parent, descendant of a parent, or employee of the
attorney described by Subdivision (1) of this subsection; or
(3) a spouse of an individual described by Subdivision
(1) or (2) of this subsection.
(b) This section does not apply to:
(1) a devise or bequest made to a person who:
or
(A) is the testator's spouse;
(B) is an ascendant or descendant of the testator;
(C) is related within the third degree by consanguinity or affinity to the testator; or
will. " (2) a bona fide purchaser for value from a devisee in a
(c) California
Harry S, Margolis and Barbara Detkin, ELDERLAw PORTFOLIO SERIES, II 23. 3. 3 (Wolters Kluwer 2011), Numerous cases are cited with respect to this issue.
Id.
4478/99999-704 current/34345009v1 29
(i) Probate Code Division 11 (Construction of Wills, Trusts and Other
Instruments), Part 3. 5 (Limitations on Transfers to Drafters and
Others) governs the gifts to draftsmen.
(ii) ) 21350(a)(1) through (3) provides as follows:
") 21350. Prohibited transferees; definitions
(a) Except as provided in Section 21351, no provision,
or provisions, of any instrument shall be valid to make any
donative transfer to any of the following:
(1) The person who drafted the instrument.
(2) A person who is related by blood or
marriage to, is a domestic partner of, is a cohabitant with, or is an
employee of, the person who drafted the instrument.
(3) Any partner or shareholder of any law
partnership or law corporation in which the person described in
paragraph (1) has an ownership interest, and any employee of that
law partnership or law corporation. "
(iii) Pursuant to Cal. Prob. Code $ 21355, Part 3. 5 is only effective for
instruments that become irrevocable on or after September 1, 1993 and before January 1, 2011, and, unless extended by statute, is
repealed as of January 1, 2014.
(d) Florida
Ild It b «'" i" "i h
is left a bequest of property is not void despite the fact that it
violates Rule 4-1. 8(c) of the Rules Regulating the Florida Bar (the
Florida equivalent to MRPC, Rule 1. 8(c)).
(A) The probate court dismissed the petition of the decedent's
former attorney and his wife to revoke the probate of the decedent's Will, determining that they lacked standing
because the prior Will contained a substantial bequest to the attorney and his wife and therefore was void as
contrary to public policy as the attorney violated Rule 4-
1. 8(c) of the Rules Regulating the Florida Bar.
(B) Attorney had filed his petition alleging undue influence in
procuring the Will that was admitted to probate.
73 So. 3d 882 (Fla. 4th Dist, Ct. App. 2011),
4478/99999-704 current/34345009v1
30
(C) In reversing the trial court, the 4'" District Court of Appeals held that the trial court improperly incorporated Rule 4-
1. 8(c) into the statutory framework of the probate code, and
that because no statutory prohibition existed to prevent the
attorney from drafting a bequest to himself (and to his
wife), the attorney, in his capacity as a beneficiary under a prior document, had standing to seek the revocation of probate.
(D) It is also noted that even if such a provision were contained
in the Florida probate code, the attorney would still have
had standing since the attorney was also named as the
personal representative under the revoked document.
(ii) Proposed F. S. ) 732. 806
(A) The Florida Bar Real Property Probate k Trust Law Section is currently drafting a statute, which would be added as F. S. $ 732. 806, similar to Texas and California with the hope that it can be presented to the 2013 Legislative Session.
(B) Additional provisions have been suggested to Proposed F. S. $ 732. 806 pertaining to the ethical obligations and
disclosure requirements that an attorney may have if he or she is to be named as a fiduciary under the governing
instrument.
(C) It is not yet known if Proposed F. S. $ 732. 806 will be presented for vote by the RPPTL Executive Counsel and
thereafter submitted for sponsorship to the Florida legislature in time for the 2013 Legislative Session.
(7) The bottom line is that for clients of any age, lawyers should never write a testamentary instrument where they receive any kind of bequest. If the client is
adamant about making such a bequest, the lawyer should secure independent
counsel to write the instrument for the client.
Assessing Capacity
(1) Comment (6) to MRPC 1. 16 (which is the rule for declining or terminating a representation) provides that "Iijn determining the extent of the client's
diminished capacity, the lawyer should consider and balance such factors as: the
client's ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness
of a decision; and the consistency of a decision with the known long-term
4478/99999-704 current/34345009v1
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commitments and values of the client. In appropriate circumstances, the lawyer
may seek guidance from an appropriate diagnostician.
(2) Generally.
(a) Determining whether a client lacks sufficient legal capacity to perform
particular acts, such as executing a will or understanding its testamentary
dispositions, is one of the estate planning practitioner's most difficult, and
important, obligations.
(b) Depending on the degree of impairment that is suspected, the lawyer may
need only make informal inquiries that are intended to satisfy possible
doubts about the client's ability to understand the consequences of the
specific legal act that she is about to undertake. '
(c) At the other end of the spectrum, a lawyer may need to consult with health
care and/or gerontology professionals who are qualified to make
evaluations concerning competency and capacity, and who can provide
appropriate interventions and treatment if necessary.
(d) With all clients, the practitioner must also be mindful of the ethical
considerations associated with counseling a client who is, may be, or
becomes incapacitated.
(3) With respect to capacity, the key element is whether the client had capacity at the
time of the execution of the document creating the transfer.
(4) The attorney should be cognizant of signs that the client may be suffering from
"dementia" or "delirium. " Symptoms of "dementia" and "delirium" include the
following:
(a) "Dementia" symptoms include:
(i) Progressive loss of memory;
(ii) Inability to concentrate;
(iii) Decrease in problem solving skills and judgment capability;
(iv) Severe confusion;
Dayton, Guare & Wood, $ 32. 15.
Id.
89
Id. at $ 32. 3.
4478/99999-704 current/34345009v1
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(v) Hallucination, delusions;
(vi) Altered sensation or perception;
(vii) Altered sleep patterns;
(viii) Motor system impairments;
(ix) Disorientation;
(x) Specific disorders of problem solving or learning;
(xi) Memory deficits (short, long term);
(xii) Absent or impaired language (aphasia);
(xiii) Personality changes; and
(xiv) Lack of spontaneity.
(b) "Delirium" symptoms include:
(i) Attention disturbance (disrupted or wandering attention);
(ii) Disorientation to time or place;
(iii) Changes in sensation and perception (increases in disorientation);
(iv) Altered level of consciousness or awareness;
(v) Altered sleep patterns, drowsiness;
(vi) Alertness may vary, usually more alert in the morning, less alert at
night (see drowsiness);
(vii) Decrease in short-term memory;
(viii) Changes in motor activities, movement (for example, may be lethargic or slow moving);
(ix) Movements triggered by changes in the nervous system (psychomotor restlessness); and
(x) Emotional or personality changes.
(5) If capacity is in question, the attorney should consider performing several informal objective tests which can prove to be helpful.
(a) It is acknowledged that many attorneys frown upon any use of informal
objective testing. The discussion in these materials is not intended to
4478/99999-704 current/34345009V1 33
advocate the use of such tests, but rather to present awareness of the
existence of such tests.
(b) Unless an attorney has appropriate education and training, he should not
use complex assessment instruments designed for medical and
psychological professionals as a basis for forming judgments about a client's legal capacity, unless such professionals are involved in
administering and scoring the tests.
(c) The lawyer should always obtain the client's consent prior to
administering any formal instruments or questionnaires intended to gauge
client capacity, 91
(d) Types of Tests
(i) Mini-Mental Status Exam ("MMSE")
(A) First presented in the literature in the mid-1970s, the
MMSE is a 30-point cognitive test used to evaluate an
adult's cognitive mental status. It takes ten minutes to administer; results can be used to screen for cognitive
impairment, to estimate the severity of cognitive
impairment at a given point in time, to follow the course of cognitive changes in an individual over time, and to
document an individual's response to treatment. The client's
score is adjusted for age and educational status, and places
the individual on a scale of cognitive function, 92
(B) Despite its relative limitations compared to some of the
more extensive assessment instruments used by medical
professionals to diagnose various mental disorders, the
MMSE is a useful tool for making a threshold, informal
assessment of a client's cognitive functioning on discrete
occasions. If the results indicate the client may be, at least
at the time of taking the test, cognitively impaired, a more
extensive evaluation will likely be necessary. 93
(C) The MMSE generally tests five areas of cognitive
function; . 94
(I) Orientation;
Id. at ) 32. 17.
Id.
Id.
Stern and Baum, at 25.
4478/99999-704 current/34345009v1
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(II) Registration;
(III) Attention and calculation;
(IV) Recall; and
(V) Language.
(ii) Legal Capacity Questionnaire
(A) The LCQ is a short test designed specifically for use by an
attorney; it can be administered as a formal test, or through discussions with the client.
The LCQ was developed primarily as a tool for assessing and documenting testamentary capacity. Like the MMSE, the LCQ can be administered in just a few minutes; results
offer a rough estimate of the client's level of cognitive functioning as it relates to the execution of a will. Outcomes on the LCQ are closely correlated with those of the Mini-Mental State Exam.
(C) Examples of questions include general information concerning the client's assets, the client's intended
testamentary dispositive scheme, personal and family information and basic financial and estate planning questions. 97
(iii) The attorney can ask general lmowledge and other questions intended to reveal whether a client is suffering from reduced concentration or impaired memory. 98
(A) General lmowledge questions that may be asked include
questions intended to test current affair cognitive ability, such as the date, the current President, the client's address
and questions concerning the client's recent activities.
Additional questions can be the "serial threes" or "serial sevens" test, which requires the client to count backwards from 100 by threes or sevens (depending on which test is administered).
Dayton, Guare & Wood, II 32. 17.
96
See gener ally Id. at Appendix 32-2.
See generally Stern and Baum, at 25-26.
4478/99999-704 current/34345009v1 35
(C) In addition, the attorney can ask the client to recite the
months of the year in reverse order, to spell a simple word
backwards, or to recall three objects that the attorney asked
the client to remember earlier in the meeting.
(6) Other Warning Signs
(a) Depression
(i) Clinical depression, which is common among the very old, may
affect a testamentary disposition.
(ii) Depression is evidenced by depressed attitude, irritability, anxiety,
lack of self-confidence, low self-esteem, poor concentration, poor
memory, social withdrawal, hopelessness, and recurrent thoughts
of death or suicide.
(iii) If depression is suspected, the planner should urge the client to
seek a professional evaluation because clinical depression can be
alleviated and even cured.
(b) Emotional Issues'
(i) Other emotional issues can stall, delay or affect the testamentary
disposition.
(ii) Clients who are frail, easily tired, and fearful that he or she won' t
be able to understand what is happening may not focus clearly on
the dispositive provisions.
(A) Some very old clients tend to have views towards their
property that can cause difficulties, such as being fixated on
the distribution of the personalty and ignoring the
distribution of the intangible, but substantial, assets.
(B) Others find it difficult to decide what to do with
inconsequential heirloom property.
(iii) As estate planning can be stressful and disruptive of routine, the
planner should have a standard response that will comfort the
client and also assist him or her to calmly assess the need for a new
will.
(7) What to do if the client fails the informal capacity tests,
Frolik at 8.
100
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(a) The lawyer is faced with a challenging situation if a person appears to lack
testamentary capacity. Lawyers have traditionally, and most commonly,
been advised that they should not prepare a will for a person whose
testamentary capacity is in doubt. 101
(b) If the lawyer is not satisfied that the client has sufficient capacity and is
free of undue influence and fraud, no will should be prepared, '
(c) The lawyer may simply decline to act and permit the client to seek other
counsel or may recommend the immediate initiation of a conservatorship;
however, note that the Florida Supreme Court, in Vignes v. Weiskopf, held that it was proper for a lawyer to prepare and supervise the execution
of a will for a client who was terminally ill and sedated to the point of incapacity,
103
(i) The bedridden and ill decedent notified his longtime secretary that
he wanted to execute a codicil to his Will and was sketchy about
the details based on his failing memory. The secretary called the
lawyer, who went over to the house the next day with the Codicil
based on the sketchy information. The decedent did not want to
read the Codicil or have it read to him, and it was fair to conclude
that the testator may not have lmown exactly what it contained.
(ii) When the Codicil was presented to the county judge for probate,
the lawyer and the other two witnesses filed an oath stating the
following:
(A) that they were present when the testator subscribed his
name to the instrument;
(B) that the testator did not read it;
(C) that its contents were not read to him nor made lmown to
him, although the attorney asked him to read it or have its
contents made known to him but the testator replied, "I will
read it later";
(D) that the codicil was immediately sealed;
(E) that the seal was not thereafter broken until its deposit with
the court;
Price and Donaldson, II 1. 6. 11, citing H. Drinker, LEGAL ETHIcs (1953), 93s.
Id. , citing San Diego Op. 1990-3.
ld. , citing Vi nes v. Weisko f, 42 So. 2d 84 (Fla. 1949).
4478/99999-704 current/34345009v1
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(F) that the attorney received no reply from the testator when he asked him if he wished three subscribing witnesses to attest his execution;
(G) that the witnesses thereupon signed the paper at the request of the attorney; and
(H) that they verily [believed] that the testator did not know the contents of what he was signing nor did he at the time of the signing thereof have testamentary capacity.
(iii) It was aclmowledged that the obvious purpose of this affidavit was to apprise the court at the first opportunity precisely what
happened in the sickroom when the Codicil was executed.
(iv) When asked at trial about why he proceeded to have the document executed under the circumstances as then existed, considering that the attorney represented the challengers to the Codicil that he himself prepared and supervised its execution, the attorney testified that "I did the best I llew how. "
(v) The Florida Supreme Court concluded that "the lawyer should have complied as nearly as he could with the testator's request, should have exposed the true situation to the court, which he did, and should have then left the matter to that tribunal to decide whether in view of all facts surrounding execution of the codicil it should be admitted to probate. "
(vi) In the couit's view it would have been improper for the lawyer to arrogate to himself the power and responsibility for deciding the
capacity of the testator.
Who is the Client
(1) Often, the elderly client is brought to the attorney by someone, perhaps a family member, who is already a client of the attorney (the "Referring Party" ). Issues are presented if the Referring Party is a beneficiary who may receive a disproportionate share or if the client insists on having the Referring Party present for the meetings.
(2) Further complications arise if the Referring Party demands to be kept informed of the status of the document preparation and contents.
(3) If the attorney previously represented the elderly individual and now represents the children, there is a real danger that the attorney possesses information which could prove adverse to the current representation. In such a situation, the attorney
4478/99999-704 current/34345009v1 38
may be forced to withdraw from the representation, These issues should be
discussed in advance with the children/client. "
Planning to Avoid Challenges
(1) Suggestions to elderly clients to improve client comprehension and eliciting
exactly what the client wants, the following may be followed
(a) General Suggestions
(i) Keep meetings short.
(ii) During the meeting with the client, observing certain procedures
can facilitate communication.
(A) The planner should not accept any phone calls or even be
informed that he or she has a call, as such interruptions can
break the flow of the conversation and cause the client to
forget what is being discussed or explained.
(B) Any associate lawyer or other aide present should remain
silent as the goal is to keep the client focused on what the
planner is saying.
(C) The meeting should have frequent breaks without asking
the client if one is needed.
(iii) Be prepared to meet at the home of a client who is excessively
fatigued or confused by meeting at the planner's office;
(iv) Sit close to the client and speak loudly;
(v) Ask the client if he or she has any problems seeing;
(vi) Use large fonts on all printed material to be shown to the client;
(vii) Consider purchasing an adaptive reading machine for clients with
macular degeneration.
(b) A older-client-friendly meeting room can be helpful and reduce
communication problems. The meeting room should;
(i) Have firm chairs because older persons can have difficulty rising
from a soft cushioned chair;
Howard S. Krooks, Practice Alert: Ethical Considerations in Elder Law, 24 ESTATE PLANNING JOURNALNO. 2
(February 1999).
Frolik at 2.
4478/99999-704 current/34345009v1
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(ii) Have a round table so that the planner can sit next to the client;
(iii) Have a glass and carafe (no bottles) of water;
(iv) Have no background noise;
(v) Have no unnecessary papers on the table;
(vi) Not have a desk between the client and the planner; and
(vii) Not place the planner in front of a window, which makes it
difficult for a client to read the expression on the planner's face.
(2) What to do if the client insists on the presence of a third person
(a) When the client insists that her son, granddaughter, niece, or even best
friend be present, the planner must have a cogent and convincing
response.
(b) The lawyer should have a "game plan" as to how to proceed — one that
may differ depending on the relationship of the client to the person whom
the client wants to have present.
(c) The careful planner will have already decided how to proceed depending
on the nature of the relationship of the client to the third party.
(d) The lawyer should ask the client to meet with him or her privately before
bringing in the third party.
(i) Confidentiality can and must be handled by the client signing a
waiver.
(A) Nevertheless, even a waiver — while meeting the legal
issue — may not prevent the disclosure of information that
the client may later come to regret.
(B) The planner must recall that the client who signs the waiver
has little idea of what information will be revealed, and
once the planner asks a question, it is too late for the client
to refuse to answer on the grounds that to do so will
disclose information to the third party that the client would
rather keep secret.
(ii) During the private meeting with the client, at which time the
waiver of confidentiality is discussed, the planner should ask the
most personal questions and also inquire as to whether any subjects
should be off-limits in front of the third party.
106
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(iii) The planner should discuss possible conflicts of interest, based on the nature of the third party. For example, if the client has three children and only one is present, that child may not be a good source of advice as to how to treat the other children.
(3) Solutions for "Who is the Client"'
(a) Once the attorney determines the identity of the client (i. e. , the elderly individual or the Referring Party), it is important to ensure that everyone involved with the representation (such as family members) knows and
agrees with this determination.
(b) For those situations where family members are insistent to being involved in the process, the following are suggestions intended to avoid implications of undue influence or conflicting the client representation;
(i) Have a conflicts system in place so that potential conflicts are surfaced prior to discussions with the Referring Party,
(ii) When a Referring Party accompanies the client to the meeting and
the client insists on the Referring Party's presence at the meeting, the attorney must speak with the client alone and explain the
problems of conflicts of interest and undue influence, and explain confidentiality concerns.
(iii) If the Referring Party states that he or she "speaks" for the client, consider whether you should continue with the interview, remind
the Referring Painty that the information must be given directly from the client, and that the consultation cannot continue if the
Referring Party does not leave the room.
(iv) Make certain that the Referring Party understands that privileged information shall not be revealed.
(v) If it is decided that the attorney will represent the client, the attorney must make it clear as to whom he or she represents and
that the attorneys' duty of loyalty lies with only the client.
(vi) All office personnel should understand these issues and be trained
to deal with them appropriately — for example, the assistant should
not divulge information if the Related Party calls and states that "I don't need to speak with the attorney, but I'm calling for my grandfather and want to liow the status of the documents and if that change that they discussed was made, and can you tell him/her
what that change was. "
I&rooks at 2.
4478/99999-704 current/34345009v1 41
(4) In an ideal world, the probate litigator will advise the attorney as to how best to
prepare for a potential contested document.
(a) Ensure that the document is executed properly, '
(i) A will contest based on invalid execution may be lodged many
years after a will has been executed, when the planner or witnesses
may be unavailable or unable to recall what happened (and when),
(ii) Given that the technical requirements for a valid execution are
codified, estate planners should develop a written checklist setting
forth each step in the execution process,
(A) Such a list may even have check-off boxes to be filled in as
each task is accomplished, and the planner should sign the
document to create contemporaneous evidence of the steps
taken at the will execution.
(B) A checklist should not be used only occasionally; if used at
all, it should be used in every case. If such a record is kept
in the ordinary course of the attorney's business, the
planner will have powerful documentary evidence that the
execution requirements were followed, even if the planner
and the witnesses are later unavailable or are unable to
recall the specifics of the will execution.
(C) Depending on the situation, the planner may want to
furnish copies of the checklist to paralegals or other
persons who are commonly used as witnesses (subject to
the admonition that skilled professionals should be
employed as witnesses in problematic situations).
(D) Each witness also should complete the checklist and sign
the document at the end of the will execution.
(iii) Estate planners and witnesses should consider preparing
memoranda detailing the events preceding and occurring during
the will execution. The memoranda should be prepared
contemporaneously with the will execution, and should describe:
(A) Where the will execution took place;
(B) Who was present; and
(C) Any discussion the attorney and client had, including
discussions concerning the client's family members and
assets.
Stern and Baum at 23.
4478/99999-704 current/34345009v1
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(b) Should the will signing be videotaped?
(i) Videotaping may demonstrate that the testator/testatrix is of sound
mind and is not under any third party's influence,
(ii) However, if every will signing is not videotaped, a videotaping
could give rise to an inference that the attorney believes that there
may be an issue — the attorney may have to defend the use of videotaping in this particular instance.
(5) When to take "Protective Action. " '
(a) Example 1 — the Falling Client
(i) 79 year-old client has begun to decline and appears somewhat
confused.
(ii) In their last several meetings, the attorney noticed fresh bruises,
which the client said were from falling.
(iii) The client is estranged from her oldest son and has not notified him
about her problems.
(iv) She is very close to a group of women at her church, and her
church may be able to provide support.
(v) In concluding that some kind of protective action is needed, to the
extent possible, the attorney should discuss with the client different
protective alternatives that would take into account her son, friends
and church.
(vi) ANSI'ER: See MPRC 1. 14(b) — Comment(5).
(b) Example 2 — The Naughty Housekeeper
(i) Attorney has represented Client for a number of years on various
matters, including estate planning.
(ii) Client has previously involved Son and Daughter in meetings with
Attorney.
(iii) Client brings in a recent bank statement to complain about an NSF check charge.
The Examples listed are cited in, Ronald C. Kinkoff, Aspirational Standards for the Practice of Elder J. aw,
PRACTISING LAW INSTITUTE, NEW YORK PRACTICE SKILLS COURSE HANDBOOK SERIES, 21" ANNUAL ELDER
LAW INSTITUTE, PLO ORDER NO. 18294 (March 19, 2009).
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(iv) Attorney notices large repetitive checks written to Client's
housekeeper.
(v) Upon questioning by Attorney, Client seems confused and has no
explanation.
(vi) Among other actions, Attorney may call Son or Daughter to alert
them to the problem.
(vii) ANSWER; See MPRC 1. 14(e). Note that this disclosure may be permissible pursuant to MPRC 1, 6(a) because it may be needed to protect the client's interest.
(c) Example 3 — The Fiduciary Conflict
(i) Attorney represents the fiduciary for an elderly man who still lives
in the home in which he grew up, with all his family's antiques.
(ii) He has a full-time nurse and service providers who maintain the
house.
(iii) The fiduciary tells Attorney that she has decided to move the older
person into a nursing home in another city.
(iv) Attorney knows that the older person is very friendly with his
neighbors.
(v) Attorney should discuss with the fiduciary other alternatives,
pointing out the interest and value to the older person of remaining
in his home.
(vi) If the fiduciary appears to be self-dealing to the principal's
detriment, or if the fiduciary is disregarding the principal's known
wishes or best interests, the attorney must take some action to protect the principal, even though such action may be contrary to the express direction of the attorney's client (the fiduciary. )
(vii) ANSWER: See MPRC 1. 14(b), Comment (4).
Conclusion
(1) Representation of an elderly client presents a host of additional issues for the
estate planner, all of which must be considered.
(2) The estate planning attorney must have a predetermined course of action for
matters involving elderly clients, including preliminary tests for identifying
diminished capacity.
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(3) The estate planning attorney must do his or her best in identifying signs of undue
influence and must be certain to take all steps in avoiding any conflict of interest
claim.
(4) The estate planning attorney must be defensive — in situations where undue
influence could be presumed, he or she must take all steps in anticipation that the
document that he or she prepared will be challenged.
(5) The estate planning attorney should follow, to the best of his or her ability, MRPC 1. 14 and the comments thereto.
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