LITIGATING A WILL CHALLENGE OF UNDUE INFLUENCE OR LACK OF CAPACITY

LITIGATING A WILL CHALLENGE OF UNDUE INFLUENCE OR LACK OF CAPACITY

The testator's mental state at the time when he or she signed a disputed will is often the key issue in a will challenge. Such mental state may support a claim under two distinct, yet related, causes of action, namely that the decedent lacked capacity or was unduly influenced.

Lack of Capacity

A client may excitedly assert that there is no doubt the decedent-lacked capacity at the time of the will signing. Although this is indeed a potential ground for challenging what purports to be a valid and duly executed will, prevailing on that theory is quite difficult. In New Jersey, the testator is presumed competent, and the presumption must be overcome by clear and convincing evidence. The courts acknowledge that only a low degree of capacity is necessary, and that an individual with a general understanding of their assets and the natural objects of their bounty at the moment of the will signing has testamentary capacity. Source – NJ Law Journal February 25, 2015

One common strategy to undermine the credibility of such witnesses is the introduction of medical records that evaluate the testator's mental health. The plaintiff may well prove—through professional and layman testimony—that the testator suffered from mental ailments before the will signing.

Undue Influence

The focus of an undue influence claim is on whether a third party imposed their own desires upon the testator, the courts are protecting the testator from what is essentially fraudulent behavior, rather than making a post-death determination that the testator did not have the ability to make a will. The existence of the mental health issue could still be introduced in such an action. The burden of proof in challenging a will based on undue influence shifts from the party who challenged the will to the proponent of the will when a person who had a confidential relationship with the testator benefits from the document and there are suspicious circumstances. The shifting of the burden to the proponent of the will, as opposed to the presumption in favor of capacity, makes it far easier to prove undue influence than a lack of capacity.

In re Olsen, 2014 (N.J. App. Div. 2014), examined undue influence that tainted a 1999 will, a 2005 will, a 2009 will, and a 2004 codicil. Olsen's saga began after the death of her husband, at which point her son George Jr., who lived on her street and took over the management of the family businesses, began to have an outsized role in her life. George Jr. received large gifts from his mother, and became the beneficiary of wills increasingly favorable to him and his family. Significant evidence was introduced that George Jr.'s verbally abusive behavior compelled Olsen to take such action and left her in a precarious financial situation. Once her other children, Kenneth and Dorothy, learned about their brother's actions, they took various steps to stop the outflow of funds. Kenneth also committed an act of undue influence when he prepared a 2009 will for his mother. After determining that all wills and codicils from 1999 through 2009 were the product of undue influence, and thus invalid, the court admitted Olsen's 1984 will to probate, which divided her estate equally among her children.

While it takes an unusual case to void the estate planning documents created over a 10-year span, and each case will rise and fall on its own facts, Olsen illustrates various types of "bad behaviors" that go to prove undue influence, many of which could easily arise in a less extreme case. First, the law firm that prepared the 1999 and 2005 wills also represented George Jr. in his personal planning. Second, this same law firm billed Olsen for time spent speaking with George Jr. regarding her will, and George Jr. also contacted this firm when he was concerned about his siblings challenging the gifts he had received, after which they prepared a gift tax return for Olsen. Third, Olsen was very dependent on George Jr., in part because he lived close by and was actively involved in the family business. Fourth, George Jr. drove his mother to the lawyer's office on at least one occasion. Fifth, disproportionate lifetime transfers were made to George Jr. during the period when Olsen was changing her will in a manner that benefited him.

If an individual who is unhappy about the provisions of a will provides compelling information, such as medical records, that raises serious questions about a testator's capacity, a lack of capacity claim may appear to be the logical course of action. On the other hand, the courts are on guard against wills that are the product of undue influence. This alternative theory provides a far more favorable burden of proof for a plaintiff with a meritorious claim.