Following the actual facts of an actual case can help understand how the law works. Though I could give you a general outline of how the courts view an Undue Influence challenge to a Will, I think you will find it easier to understand if the rules are applied to a set of real facts. In this example, I will use the case, Asselin Will, decided upon by the Orphans’ Court Division of the Court of Common Pleas of Bucks County.
The issue before the court was whether or not to grant the appeal made by aggrieved relatives from the Decree of the Register of Wills admitting to probate the last will and testament of the decedent, Georgiana Asselin, because it was a product of undue influence.
First, let me give you the dry, legal standard applied to Undue Influence cases.
Once a Will is probated with the Bucks County Register of Wills, a presumption of the Will’s validity arises and the burden shifts to those who would challenge the will to prove undue influence. The Pennsylvania Courts use a three-part test to determine whether undue influence affected a testator in creating a Will. This test was first described in In Re Estate of Glover, 669 A.2d 1011 (Pa. Super. 1996). Those challenging the Will must establish a prima facie case showing that:
- The testator was of weakened intellect when the Will was executed;
- The proponent of the Will stood in a confidential relationship with the testator; and
- The proponent of the Will received a substantial benefit under the Will.
If the person challenging the will can prove all three of these points, the burden shifts to the proponent of the Will (the person who wants the Will terms respected) to prove that the Will was NOT the product of undue influence. Now, let me apply this standard to the facts of the Asselin Case to help you understand how to apply them to your fact pattern.
Findings of Fact
The judge in Asselin listend to all the testimony and evidence, and arrived at the following findings that he believed to be true. As you read them, apply the three point Glover test. At the end, I will explain how the judge applied the three prongs of the Glover test to these facts.
- Georgiana Asselin (the “Decedent”) died on September 27, 2005, a resident of Bucks County, Pennsylvania.
- Maurice Asselin, decedent’s husband of approximately 40 years, predeceased her in 1997.
- Decedent had no children, but she had three nieces and one nephew through her younger sister, Eileen H. Two of her nieces, Beth and Eileen B. (the “Contestants”), eventually challenged the validity of the Will.
- The deceased also had a nephew, Gilbert, who predeceased her. Gilbert was married to Janice (the “Proponent”) at one time.
- The last Will of Georgiana Asselin dated April 11, 2002, was admitted to probate by the Register of Wills of Bucks County, Pennsylvania, on October 24, 2005.
- Under the 2002 Will, both Contestants were to receive personal property and Eileen B. was to receive $5,000.00. All other assets passed to Janice.
- The 2002 Will was prepared by Attorney John. John was named executor, Janice was the successor executor.
- Georgiana’s had a previous Will executed January of 1998 leaving $5,000.00 to Janice and divided the remainder of her estate between nieces and nephew.
- She had executed another will in 1999 appointing Beth and Janice as executors and dividing the estate between Beth, Janice and one of Georgiana’s former students.
- In March of 2000 Georgiana signed another Will, dividing her estate 5/8 to Beth and 3/8 to Janice.
- John K, a financial planner, acted as Georgiana’s trusted advisor. Following her husband’s death, John K assisted Georgiana with her estate planning and other financial matters.
- In 1998 John K, at Georgiana’s request, contacted Attorney Waltz to prepare the 1998 Will. Attorney Waltz also prepared a durable power of attorney naming Beth as Georgiana’s attorney in fact.
- At Georgian’s request, after 1998 John K contacted Attorney John to prepare her Wills.
- The judge heard testimony that Georgiana was an intelligent, educated woman who was a school teacher during her career. She enjoyed reading and writing and liked to engage in conversations with respect to current events, especially politics. She was described as a stubborn woman who did not give in easily to opposing views.
- Georgiana became depressed following her husband’s death. Noticing the change, Beth and her husband began to visit her regularly.
- On April 24, 1999, Georgiana executed a new power of attorney replacing Beth with Janice as attorney in fact. Beth was not advised.
- By 1999 Beth’s visits had become less frequent. The Proponent, on the other hand, was visiting the decedent weekly and began helping her with household tasks.
- At the time of the 2000 Will, Janice visited the decedent, at minimum, on a weekly basis. Decedent became increasingly more dependent upon Proponent for food, laundry and other basic necessities. Proponent also provided decedent with transportation for doctor’s appointments and other necessary trips.
- At this time, decedent’s physical condition began to decline. She was essentially confined to the lower level of her home and spent the majority of her time seated on a couch. She required assistance to move around and to perform general personal hygiene.
- At the decedent’s request, Proponent began to assist her with some of her financial affairs. Proponent, acting under her power of attorney, would write checks to pay for decedent’s household expenses and other similar expenditures. By the time of the 2002 Will decedent stopped writing checks and Proponent had full control of decedent’s checkbook.
- In March of 2000, decedent was admitted to Doylestown Hospital. During her hospitalization, a psychiatrist diagnosed her with early stage dementia and recommended that decedent move into an assisted living facility.
- After decedent’s discharge from Doylestown Hospital, Beth expressed to decedent her opinion that it was in her best interest to move into an assisted living facility. Decedent, however, expressed a strong desire to remain in her home and rejected Beth’s advice.
- This difference of opinion negatively impacted their relationship and Beth thereafter had minimal contact with decedent.
- Proponent was willing to help care for decedent so she could remain in her home.
- Decedent was hospitalized again in August of 2001. Her doctor then recommended that if she were to remain at home she receive in-home care from nurses.
- Her doctor did not diagnose decedent with dementia, but rather indicated that she suffered from bouts of confusion that may have been related to her deteriorating physical condition.
- In April of 2002, Proponent applied for a daily home companion to help care for decedent.
- On April 6, 2002 Mary was interviewed for the position and while accompanying decedent to the bathroom noticed significant bruising on her back.
- Decedent was taken to Doylestown Hospital Emergency Room for treatment where it was determined that she had recently fallen while at home and was diagnosed with an acute vertebral compression fracture. She was discharged with a prescription for Vicodin.
- On April 8, 2002, John K. contacted Attorney John regarding changes to decedent’s Will. An appointment was set for April 11, 2002 to sign these changes.
- On April 11 Attorney John traveled to the decedent’s home where they met with her, John K and Mary. Proponent was not present. At that meeting, decedent thoroughly reviewed and then executed the 2002 Will.
- Attorney John indicated that decedent was in a substantially similar condition as she was during prior meetings when he had met with her to discuss previous Wills. She asked him appropriate questions about his son based upon prior discussions she had with him on prior occasions. She also engaged in a cogent political discussion where she made her views clear.
- Based on his observations and discussions with decedent, Attorney John found that the decedent had the capacity to execute a Will and was not acting under undue influence.
- On April 17, 2002, decedent was admitted to Doylestown Hospital with extreme pain from her back. She seemed to be suffering from hallucinations and dementia. She was later discharged to a rehabilitation center.
- On May 2, 2002 decedent was given a mini mental status exam where she scored 25 out of 30. This was considered to be an average score for someone of her age.
- Annette, decedent’s friend since the 1980s and a nurse said she specifically recalled visiting the decedent in 2001 and 2002 because her youngest child was attending kindergarten near decedent’s home. Annette visited her approximately every other week and never noticed that decedent suffered any mental deficiencies and that decedent seemed the same mentally as she had always been in previous years.
- Georgiana died on September 27, 2005.
- Proponent never discussed estate planning with decedent and was not responsible for arranging any changes made to decedent’s Wills.
- Proponent presented the expert opinion of Dr. Barbara who testified that, in her opinion, decedent had testamentary capacity and was not of weakened intellect at the time she executed all of her Wills, including the 2002 Will.
- Dr. Barbara acknowledged that decedent had physical limitations but that they did not cause a decline in her cognitive functioning. Furthermore, Dr. Barbara believed that decedent may have experienced bouts of confusion as a result of her physical disabilities but those instances would not support a diagnosis of dementia.
- Contestants presented the expert opinion of Dr. Stephen, who believed that decedent was of weakened intellect at the time she executed the 2002 Will.
- Dr. Stephen testified that decedent had a progressive decline in her cognitive function as result of dementia. He also believed that decedent’s depression contributed to the decline in her cognitive functioning.
How the Judge Ruled:
- Prong 3: The judge began with the third of the three prongs: “Did the proponent of the Will receive a substantial benefit under the Will?”
- The judge found that the Proponent had a substantial benefit under the 2002 Will, and that the Contestants had established a prima facie case to that prong.
- Prong 2: The judge then moved on to the second prong, “Did the proponent of the Will stand in a confidential relationship with the testator?”
- The judge turned to past case law, and found that a confidential relationship exists “whenever circumstances make it certain that the parties did not deal on equal terms but that on the one side there was an overmastering influence, and on the other, dependence or trust, justifiably reposed” Estate of Luongo, 823 A.2d 942, 964 (Pa. Super. 2003). Proponent’s influence over the deceased must rise to the level of control “acquired over another that virtually destroys [that person’s] free agency: Id (quoting Estate of Angle). And the judge found that simply having a power of attorney is not a presumption of a confidential relationship.
- The judge applied this case law to the facts, and determined that even though the Proponent had and used a power of attorney to handle Georgiana’s affairs, and that the decedent relied upon the Proponent for her daily living, that the relationship did not rise to the level of a confidential relationship. The judge believed that Georgiana instead relied upon John K. to carry out her estate planning wishes. The judge also relied on the testimony he received about how the decedent was an intelligent woman with strong beliefs and opinions who never seemed to compromise her beliefs to please anyone else. These findings caused the judge to rule that the Proponent did not have a confidential relationship with decedent such that she would have been able to exert influence over decedent in order to convince her to alter hew Will in a manner favorable to Proponent.
- Prong 1: Weakened Intellect.
- The judge also ruled that the decedent did not suffer from a weakened intellect at the time she executed the 2002 Will. He acknowledged that decedent suffered from bouts of confusion and symptoms similar to dementia, but believed the expert opinion of Dr. Barbara to be credible with respect to her determination that these resulted from her physical disabilities. The judge also relied on Attorney John’s testimony about his conversations with the decedent at the actual time the of the Will’s execution.
To win a Will Challenge case based on Undue Influence requires a great deal of careful legal preparation in order to provide the judge with the necessary testimony, expert opinion and evidence. Hopefully, this dissection of a real Will Challenge based on Undue Influence has helped you understand the subtle rules that a judge will apply.
If you have further questions, feel free to contact me. Wills, Trusts and Estates, Its’ All We Do!
Peter Klenk, Esq.
PA, NJ, NY, MN and FL