Anatomy of a Will Contest
Alisa J. Gray and James
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
Do you have a will?
What’s the basis for your suit?
Do you have any other claims you
Do you have the medical evidence
Who has the burden?
And two pesky ethical questions:
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
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.
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.
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
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
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
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
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
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
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
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
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