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When does helping a parent draft a Will become “undue influence”?

Posted Friday, March 23, 2012 by John S. Palmer

On March 20, 2012, Division 3 of the Washington State Court of Appeals handed down an opinion illustrating the potential hazards of helping an elderly parent change his or her Will, particularly when the new Will substantially benefits that child. Secondarily, the case serves as a cautionary tale about using a Power of Attorney to gift a parent’s assets.

The facts of the case are somewhat typical in this day and age: An elderly widow, Virginia, had two adult sons, John and William, who were in conflict over her care. In October 2002 Virginia came to live with John in Washington State. In December, he arranged for her to see a lawyer, who drafted a Will and Trust leaving her estate in equal shares to John and William.

In March 2003 (a mere 3 months later), John helped Virginia write a letter asking the lawyer to draft a new Will disinheriting William. Due to a potential conflict of interest (the lawyer had done legal work for John), he referred Virginia to a new lawyer, and John drove her to the appointment. This lawyer ultimately drafted a new Will leaving 99% of Virginia’s estate to John and 1% to a grandchild.

Virginia died in March 2007; after her death, William learned of the new Will and initiated a Will contest asking that the 2003 Will be invalidated so as to permit Virginia’s estate to be divided equally between John and William pursuant to the 2002 Will and Trust.

The trial court agreed with William and invalidated the most recent Will. The Court of Appeals reversed and ruled in John’s favor, noting that the burden was on William to show by clear and convincing evidence that the newer Will was the product of undue influence. While certain facts raised red flags (Virginia was reliant on John for care and support, John substantially benefited from the new Will and facilitated its creation), the Court of Appeals found that other evidence successfully rebutted any presumption of wrongdoing by John; in particular, Virginia met with the new lawyer alone, had testamentary capacity, and was able to articulate valid reasons for wanting to disinherit William. After John rebutted that presumption, William failed to meet his burden of proving undue influence.

An interesting twist to this case is that Virginia had very few assets at the time of her death because John, apparently using a Power of Attorney given to him by Virginia, transferred most of her assets to himself before she died. Therefore, as a preliminary matter, the Court analyzed which issue it needed to address first: the validity of the lifetime gifts or the validity of the 2003 Will. It concluded that the Will dispute needed to be resolved first; if it was resolved in John’s favor, there would be no need to determine the validity of the gifts, because virtually all property John might be required to return to Virginia’s estate would be given right back to him under the Will. Had the Court invalidated the 2003 Will, the outcome could have been very different for John, because unlike the Will contest, where the burden of proof is on the person challenging the Will, John had a “confidential relationship” with Virginia, which would put the burden on him to prove the gifts were valid. To explain why the burden of proof would shift like this, the Court cited some particularly eloquent language from a 1901 case:

“The controlling reason is, I think, because by a gift a man strips himself of that which he can still enjoy and of which he may have need during his life; while by his will he disposes of that which can be of no further use to him. As he is, under ordinary conditions, so much the less likely to do the first than the second, courts subject gifts to the sharper scrutiny.”

In Re Trust & Estate of Melter, Docket No. 29192-8-III, Decided March 20, 2012

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