Anatomy of a Will Contest

So, you’re going to court. The clients are motivated, the advance fee has been paid, the miscreants have been identified. Before you leap, take a moment to map out what you have, where you’re going, and how you’re going to get there.

Start by asking yourself some basic questions:

Do you have a will?
What’s the basis for your suit?
Do you have any other claims you can bring?
Do you have the medical evidence you need?
Who has the burden?

And two pesky ethical questions:

Who is your client?
What does your client want?

LOST WILLS

A.R.S. § 14-3415 (A) outlines the requirements for probate of a lost will:

If an original will that was last seen in possession of the testator cannot be found after the testator’s death, the testator is presumed to have destroyed the will the intention of revoking it.

See also In re Estate of Travers 121 Ariz. 282, 283, 589 P.2d 1314, 1315 (App. 1978) (“The general rule is when a will which was last seen in the possession of the testator cannot be found after his death, there is a presumption that he destroyed it animus revocandi.”).

The presumption of revocation is rebuttable:

This presumption may be rebutted by preponderance of the evidence. If this presumption arises and is not rebutted, the will is revoked.

A.R.S. § 14-3415 (A). To rebut the presumption, a proponent of the lost will “must account for his failure to produce the original will.” William J. Bowe & Douglas H. Parker, Page on the Law of Wills § 29.163, p. 738 (Parker-Bowe revision 1960).

If the will is in the custody of the testator, or is in a place to which he has ready access, and testator is physically and mentally capable of destroying the instrument with the intent to revoke it, it will be presumed, if the instrument cannot be found, and no explanation is given of its absence, that testator destroyed it with the intention of revoking it. Id.

Evidence that a will was seen after a testator’s death is sufficient to rebut the presumption. In re: Estate of Schade 87 Ariz. 341, 351, P.2d 173 (1960)

Rebuttal of the presumption of revocation is a fact-intensive exercise. No specific elements exist that must be met. Rather, the court weighs all of the evidence in making a determination. Some of the factors that Arizona courts have considered in rebutting the presumption are as follows:

Decedent’s house was searched thoroughly and nothing turned up.
Decedent “fastidiously saved important records and was unlikely to have lost his original will and trust.”
Decedent kept all of his important papers in one place in his house.
Decedent sometimes acted impulsively, and had been known to tear or discard papers.

In re Estate & Trust of Piiafas, 172 Ariz. 207, 209-210, 836 P.2d 420, 422-423 (App. 1992). Pilafas did not extend the common law presumption to trusts, holding that the trust document itself determines the manner of revocation.

Courts in other jurisdictions have applied numerous factors to determine whether the common law presumption could be sustained or rebutted. For example, did the decedent make any statements about changing the will, and to whom? See In re Estate of Travers, 121 Ariz. 282, 589 P.2d 1314 (App. 1978). Obviously, the credibility of the testifying witness plays a large role in this evidence, as do the rules of hearsay and the Dead Man’s Statute, A.R.S. § 12-2251. Another key factor is access to the will of persons other than the trustee. Did an intestate heir or a person named in a prior will have access to the will? What was the testator’s relationship with the person or persons disinherited in the lost will? Are there any circumstances surrounding the will’s disappearance that raise suspicion? Did the testator take any actions that would be consistent or inconsistent with the terms of the lost will? And what was the testator’s mental state? For an exhaustive synopsis of lost will cases from all jurisdictions, see Annotation, “Sufficiency of Evidence of Non-revocation of Lost Will not Shown to Have Been Inaccessible to Testator – Modern Cases,” 70 A.L.R. 4th 323.

OTHER CLAIMS

Before embarking on litigation over a will, one should always ask: Are there other claims that could be brought in addition to, or in place of, a typical will contest? Two to look for are financial exploitation and tortious interference with expectancy of inheritance.

Financial Exploitation. Where there’s smoke, there’s often fire. Where someone has unduly influenced the testator to change the will, that person often has also committed financial exploitation. See A.R.S. § 46-451 et seq. Factually, financial exploitation is easier to prove than undue influence: the statute shifts the burden to the alleged exploiter to prove that no exploitation took place. But first a threshold requirement must be met: Did the alleged influencer take anything from the victim before death?

Coercing someone to change the dispositive provisions of a will or trust, albeit egregious, is not financial exploitation. Nothing is taken from the victims – other than perhaps the right to pass property as they choose. Financial exploitation is a personal injury claim, and the victim – or the victim’s representative – must show actual damages.

A will contest, by contrast, is an in rem action in equity. The end result is to undo the harm and return to the status quo ante, not to assess damages. Unless the alleged exploiter actually took something from the victim during life, or did something that did not benefit the victim, a claim for financial exploitation does not exist.

Tortious Interference. Many states have created an alternative at law to the traditional will contest. Based on the traditional tort of intentional interference with contractual relations, this emerging theory provides disappointed heirs with their day in court even if a traditional probate action would afford little or no relief. Moreover, it permits the recovery of punitive damages and attorney’s fees, which a will contest normally does not.

If an Arizona court were to entertain a cause of action for tortious interference, it is likely that the court would look to the Restatement to supply the required elements. Section 774B of the Restatement (Second) of Torts, “Intentional Interference with Inheritance or Gift,” provides as follows:

One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.

Courts in states that have recognized the claim generally have held that a plaintiff must plead and prove the following five elements:

The existence of an expectancy.
The defendant’s intentional interference with that expectancy.
Interference that constitutes conduct tortious in itself.
Reasonable certainty that the devise would have been received by the potential devisee but for the defendant’s interference.
Damages.

Furthermore, courts normally will not entertain an action for tortious interference if (1) the testator is still alive, or (2) a conventional will contest would provide an adequate remedy.

No appellate court has addressed the question of whether Arizona recognizes the cause of action. That may change, however, thanks to an ongoing case in Maricopa County. Jaeger v. Westerman, CV 2008-016992.

Robert moved in with his mother around 2000 and lived with her for seven years. He says that he cooked, cleaned, and tended to Mom the entire time, and that she promised to leave her house to the child who looked after her. Mom says that she let him move in when he was unemployed, but that he spent her money and couldn’t find work, and that she was tired of supporting him. (Dennis Wagner, “Valley Inheritance Case Imperils Rights of Elderly,” Arizona Republic, January 22, 2009)

Mom’s other kids became concerned about her care, believing that Robert was trying to bully and isolate her. A daughter moved in, Robert was forced to move out, and Mom obtained an order of protection against him. In 2007, Mom revised her will. Robert was out, her other kids were in. Id.

Robert has sued his siblings for tortious interference with expectancy of inheritance. Never mind that Mom is still alive and fully competent. Never mind that a will contest would provide a complete remedy. Robert is not seeking to overturn the will. Rather, he is suing his siblings – for over $1 million in compensatory and punitive damages.

The defendants moved to dismiss. The court acknowledged the novelty of the claim, but denied the motion: “While the legislative branch may not have included this cause of action in the Probate Code, that fact does not mean that the cause of action was considered and rejected by the legislature.” January 6, 2009 Minute Entry, Jaeger v. Westerman, CV 2008-016992. The case is currently set for alternative dispute resolution, with a settlement conference to be held no later than July 27, 2009. Jaeger, March 11, 2009 Minute Entry.

Query: Did Robert jump the gun? What’s to stop Mom from revising her will yet again? Of course, she’d want to get a clean bill of health from her doctor, and not involve her children in engaging and meeting with her lawyer. But as the old saying goes, “the power to appoint is the power to disappoint.” A new will renders the prior will unenforceable, thereby eliminating Robert’s damages claim. Of course, he could always sue again on the new will; but at some point, the carnival has to pull up stakes and leave town.

And thus we see why those states that permit a claim for tortious interference throw up roadblocks to its use. At some point, Arizona will as well. But until that time, in the gap between recognition and regulation, much mischief can occur.

GROUNDS FOR A WILL CONTEST

A will contest is a creature of statute. No common law right to challenge a will exists, and thus any litigation seeking to overturn a will must comply with all of the statutory requirements. A.R.S. §14-3401 et seq. provide the basis for all formal probate proceedings, including will contests.

A.R.S. §14-3407 outlines the theories on which a will contest may be brought. Assuming the will is facially valid, these theories include lack of testamentary intent or capacity; undue influence; fraud; duress; mistake; and revocation. Of these theories, the two most common are lack of capacity and undue influence, which often incorporate the other theories. For a discussion of mistake as grounds for overturning a will, see In re: Estate of Gillespie, 183 Ariz. 282, 903, P.2d 590 (1995).

Lack of Capacity. The contestant must show by a preponderance of the evidence that the testator lacked capacity to execute the will. The traditional test for capacity has three prongs, and a contestant need show that only one is lacking:

Did the testator understand the nature of the act he or she was doing?
Did the testator understand the nature or character of his or her property?
Did the testator understand his or her relation to the persons who had claims upon his or her bounty and whose interests were affected by the terms of the instrument? In other words, did he or she know who the heirs were and how the will would affect them? See In re O’Connor’s Estate, 74 Ariz. 248, 259, 246 P.2d 1063, 1070 (1952).

This is a low standard. Testators suffering from dementia, Alzheimer’s disease, or any number of physical or mental maladies have testamentary capacity as long as these three requirements are met. The second requirement, that testators understand the nature or character of their property, does not require that the testators know to the dollar how much they own. Especially in the case of a sophisticated portfolio, a rough knowledge of the assets is sufficient. That a testator believes, however, that he or she owns fifteen houses but only owns one, would be too rough.

Further complicating the will contest is the fact that contestants must demonstrate that testators lacked capacity at the very moment they put pen to paper. That a testator could not meet the three requirements a month before or a month after the signing, while useful evidence, is not dispositive.

The most extreme demonstration in Arizona of the difficulty of establishing lack of testamentary capacity is presented by In re Stitt’s Estate, 93 Ariz. 302, 380 P.2d 601 (1963). For the last three years of her life, Mrs. Stitt transformed from a “quiet, mannerly, modest woman” to something altogether different. Witnesses testified that she:

became coarse and profane;
shrieked and screamed at all hours of the day and night;
wore very little clothing, occasionally exposing herself to the neighborhood children;
rarely combed her hair or bathed;
affirmed a belief in the “power of thought” and practiced “black magic”;
tried to put a hex on the family next door to get them to move out;
spied on the neighbors’ children from a peephole in her outhouse;
glared, gestured and stuck out her tongue at the children;
became incoherent and even more ill-tempered shortly before her death.

Stitt at 304, 380 P.2d at 602.

Despite this behavior, the court affirmed the will based on the testimony of her lawyer, the two attesting witnesses, and the nurses. All of these witnesses testified that Mrs. Stitt “was of sound mind at the time she executed the will.” Id. at 305, 380 P.2d at 603 (emphasis in original).

This theory is often referred to as the “lucid moment” doctrine – that testators, regardless of their general mental condition, can have a moment of mental soundness during which they clear the threshold for capacity.

But the landscape may be changing. Advances in neurological research now suggest that lucid moments are not always lucid. Instead, researchers and psychologists often refer to a “social veneer,” the ability of people with Alzheimer’s disease or other forms of dementia to adopt coping skills to hide their illness. To lay persons (such as estate planning lawyers), the client may appear to be competent; but psychological testing reveals a steadily deteriorating condition. In other words, dementia is a glide path, not a roller coaster. As the research improves and courts pay it more attention, the “lucid moment” theory, without more, may become less persuasive.

As trusts play an ever larger role in the disposition of assets after death, the inevitable question arises: what level of competence is required to execute or amend a trust? Although no published opinion has addressed the question directly, many practitioners have adopted a case-specific, functional approach: the level of capacity depends on what the trustor is trying to do. Is it an amendment to change the dispositive provisions? Testamentary capacity may be sufficient. Is it a new trust, with generation-skipping clauses, unusual powers granted to the trustee, and sophisticated tax planning? Then the trustor might need a higher level of capacity, such as contractual capacity.

To avoid this problem, some practitioners (and occasionally friends and family, who are reluctant to hire a lawyer) will resort to powers of attorney where capacity is in question. This could backfire. A power of attorney creates a principal/agent relationship, which is a contractual relationship. A court may hold that contractual capacity is required for execution. And powers of attorney create a minefield for the agent, due to the stiff penalties under A.R.S. §§ 14-5506 and 46-456 for any breach of duty.

Undue Influence. A person unduly influences a testator “when that person through his power over the mind of the testator . . . makes the latter’s desires conform to his own, thereby overmastering the volition” of the testator. In re McCauley’s Estate, 101 Ariz. 8, 10, 415 P.2d 431, 433 (1966). Undue influence must be proved by clear and convincing evidence. Evans v. Liston, 116 Ariz. 218, 220, 568 P.2d 1116, 1118 (App. 1977).

Unlike testamentary capacity, undue influence does not have required elements. Rather, courts consider all circumstances, including the traditional eight:

Did the alleged influencer make any fraudulent representations to the testator?
Was the will hastily executed?
Was the execution concealed?
Was the person who benefitted by the will also active in its procurement?
Is the will consistent with the testator’s prior declarations?
Are the will’s provisions reasonable and not unnatural in view of the testator’s attitudes, views and family?
Was the testator susceptible to undue influence?
Were the testator and the alleged influencer in a confidential relationship? Id.

Traditionally, a presumption of undue influence arose when a person occupying a confidential relationship with the testator was active in procuring the execution of the will and was named as a principal beneficiary. But as soon as the person denied the allegation of undue influence, the presumption vanished, even if no one believed the denial, and the contestant had to prove undue influence by other evidence. In re O’Connor’s Estate, 74 Ariz. 248, 260, 246 P.2d 1063, 1071 (1952). See also In re Pitt’s Estate, 88 Ariz. 312, 317, 356 P.2d 408, 411 (1960); In re Slater’s Estate, 6 Ariz. App. 486, 488-89, 433 P.2d 666, 668-69 (1967); In re Thompson’s Estate, 1 Ariz. App. 18, 23, 398 P.2d 926, 931 (1965).

The Shumway Shift. A 2000 case, however, turned Arizona law on its head. Shumway v. Shumway appeared to be a straightforward case about the enforceability of an in terrorem, or no contest, clause. The Arizona Court of Appeals held that the clause was enforceable because the will contestants lacked probable cause. 197 Ariz. 57, 3 P.3d 977 (App. 1999). The Arizona Supreme Court reversed, creating a generous definition of “probable cause,” thereby rendering the will’s no-contest clause – and perhaps all such clauses – unenforceable. 198 Ariz. 323, 9 P.3d 1062 (2000). So far, so good.

But as with many cases, the real earthquake in the opinion was contained not in the holding, but in the dicta – or more specifically, in the courts’ summaries of the state of the law. In analyzing the burdens of proof in a will contest, both the Supreme Court and the Arizona Court of Appeals got the law wrong.

The Shumway courts ignored O’Connor and the many others that concur with its reasoning, stating instead that once the presumption arises, the alleged perpetrator must prove, by clear and convincing evidence, that no undue influence occurred. This is a dramatic shift of the burden of proof and a sea change in Arizona law. Yet the only authority either court cites for the proposition is Stewart v. Woodruff, 19 Ariz. App. 190, 194, 505 P.2d 1081, 1085 (1973).

Stewart is inapplicable for several reasons. First, it concerns not a will contest, but a challenge to the validity of a deed, in which the grantor himself claimed undue influence. The public policy favoring testacy, the high burden of proof reinforcing that policy, and the inability of the testator to testify as to his or her intentions strongly suggest that the law of deed challenges is a poor analogy to that of will contests.

Second, the relevant paragraph in Stewart appears to contradict, or at least to qualify, the proposition relied on by Shumway:

“While appellant is correct in asserting that where a confidential relationship is shown the presumption of invalidity can be overcome only by clear and convincing evidence that the transaction was fair and voluntary, it is equally correct that the bare existence of a confidential relationship between grantor and grantee, standing alone, does not raise a presumption of fraud or coercion. A deed will not be set aside merely because the grantor and grantee sustained a confidential relationship where the evidence shows no abuse of confidence, and the mere fact that the grantor later changed his mind will not justify a court in undoing the grant.”

Stewart at 194, 505 P.2d at 1085. In other words, the legal presumption of undue influence is merely that: a presumption, not evidence. Absent evidence, no shift of the burden takes place.

Third, the only Arizona support Stewart cites – Smith v. Connor – has nothing to say about will contests or shifting burdens: “Unquestionably, a person who wishes to impose a trust on a transaction which on its face appears to be a valid transfer must convince the trier of fact of the trust by clear and convincing proof.” Smith v. Connor, 76 Ariz. 6, 9, 347 P.2d 568, 570 (1959).

In both Stewart and Smith, the person contesting the transfer was the very person who executed the transfer. In a will contest, however, a third party – usually a disappointed heir – seeks to void the testamentary transfer. Because the testator is no longer around to defend the will, the courts step into that role by requiring the contestant to prove undue influence by clear and convincing evidence. Therefore, for public policy reasons, the law of wills differs from, and may not be analogized to, the law of transfers during life.

Inexplicably, the O’Connor line of cases was not unknown to either Shumway court. The Supreme Court at ¶ 7 cited O’Connor for another proposition, and the Court of Appeals at ¶ 14 cited Evans v. Liston for the presumption of invalidity. Yet both courts then disregarded the well-established law of testamentary undue influence in favor of Stewart’s perfunctory and murky analysis of the law of deeds.

Many probate practitioners assumed the court would clean up the Shumway language in a later case that squarely addressed the presumption. After all, the Shumway court didn’t need its legal summary to arrive at its holding, and thus a later court would not be reversing Shumway if it restored the traditional teaching.

In Mullin v. Brown, a legal malpractice case, the Court of Appeals got a second chance. 210 Ariz. 545, 115 P.3d 139 (2005). The attorneys failed to contest the will, and the jury decided that the will contest would have succeeded, awarding damages. The attorneys appealed, arguing, among other things, that the shifting burden was bad law and thus they would not have been able to prove undue influence.

Both sides presented careful, well-researched, thoughtful arguments. The appellants pointed to O’Connor and its progeny, referred to the Shumway analysis as dicta, and concluded, reasonably enough, that courts do not reverse decades of law without sending a clear message. The appellees cited public policy, observed that most states do shift the presumption, and argued that the Shumway courts were simply bringing Arizona in line with the majority.

The court acknowledged that “when our supreme court substantially changes the law in a particular area, it does so explicitly by acknowledging the change and thoroughly explaining its reasons therefore.” Id. at 549, 115 P.3d at 143. That did not happen in Shumway. In the end, though, the court had to follow the Arizona Supreme Court: “We are not free to disregard the clear import of the court’s language in Shumway – that the presumption of undue influence, once it arises, shifts the burden of persuasion to the proponent of a will.” Id. at 550, 115 P.3d at 144.

Since Shumway and Mullin, the sky has not fallen. Plaintiffs’ attorneys have not lined up at the courthouse doors, salivating and clamoring for hearings. But the fact remains that almost a century of Arizona jurisprudence has vanished. Defendants who meet the criteria for the presumption are now faced with the daunting task of proving a negative – that they did not unduly influence the testator – when their best witness is no longer around to testify.

IDENTIFYING THE CLIENT

The brilliant trial attorney Edward Bennett Williams was once asked who his client was in a particular case. He replied, “I am the attorney for the situation.”

Those days are over, at least in probate. Nevertheless, it is surprising how many attorneys, especially estate planners, fall into the trap of representing more than one person. They begin by drafting estate plans for the parents. Then the children need wills, powers of attorney, or other legal services. But then someone dies, a dispute arises, and the lawyer is out of a job – except perhaps as an unpaid witness at trial. “Attorney for the family,” as with “attorney for the situation,” can be a ticket to disqualification.

Before heading to court, you need the answers to several questions. Who is your client? Do you represent that person in an individual or a fiduciary capacity? It is unlikely you will be able to do both. Do you have more than one client, such as several beneficiaries? Is there a potential conflict among them (such as different distributions under different documents)? Make sure everyone understands whom you represent, how you represent them, and the possibility of conflicts. And get their consent in writing.

WHAT’S THE GOAL?

Perhaps the most important thing in probate litigation, more so than in other civil litigation, is also the first thing. At the first meeting with the clients, after hearing their story, analyzing the law, and considering your options, ask the crucial question: “What do you want from this litigation?”

The answer may surprise you. Remember, you are often dealing with families who have decades of issues. They will still be related – and no doubt still fighting – long after you are gone. So make them articulate what they expect. Are they being unreasonable? Will litigation even get them what they want? Is there some other road to their goal? You need to know that – and tell them – now.