Anatomy of an Undue Influence Case
| Publication year | 2013 |
| Pages | 55 |
| Citation | Vol. 42 No. 4 Pg. 55 |
By Spencer Crona, Molly A. Callender, Richard F. Spiegle.
Articles Trust and Estate Law
Trust and Estate Law articles are sponsored by the CBA Trust and Estate Section. Topics include trust and estate planning and administration, probate litigation, guardianships and conservatorships, and tax planning.
Coordinating Editors
David W. Kirch, of David W. Kirch, P. C, Aurora—(303) 671-7726, dkirch@dwkpc.net; Constance D. Smith, of Fairfield and Woods P.C.— (303) 894-4474, csmith@fwlaw.com
About the Authors
Spencer J. Crona is special counsel to the Denver firm of Brown & Hulbert, LLC—scrona@brownandhulbert.com. Molly A. Callender is an associate with Brown & Hulbert, LLC— mcallender@brownandhulbert.com. Richard F. Spiegle, PsyD, is a forensic and clinical psychologist and principal of the Center for Forensic and Clinical Psychology— rspiegle@drspiegle.com.
In view of Colorado law defining "sound mind" to make a will, will contests typically center on the issue of undue influence. Based on actual events, this article reveals the frequently encountered, realistic features of the undue influence case.
As practitioners may discern from an initial read of Breeden v. Stone, [1] the Colorado Supreme Court’s preeminent expression of the unified definition of testamentary capacity, and from further application of such definition in Estate of Romero, [2] Colorado law establishes a relatively low set of standards for "sound mind"[3] to execute a valid will. Such standards perhaps reflect public policy’s enduring respect for testamentary freedom, [4] even while the Colorado Probate Code makes identification and effectuation of the decedent’s true intent for distribution of property at death one of its chief underlying purposes.[5]
Accordingly, absent strong indicia of the testator’s severe cognitive impairment, disputes over the validity of testamentary and donative instruments frequently take the form of the undue influence case instead of the lack of testamentary capacity case, though objections to wills often list both as grounds. Using the detailed facts of an actual case litigated to settlement (with changed names, condensed evidence, composite characters, and altered time frames to protect confidentiality), this article describes the important factors and intricate subtleties of an undue influence case.
Facts of the Case
Kingston Walter Lear (Walter) died in his home at age 90. He was predeceased by his wife of more than sixty years. Walter had no children.
Walter was born and raised in New England. After serving in World War II, he returned to New England and moved in with his only sister; her husband; and their two young children, Cordelia and Kent. Walter always maintained a pleasant familial relationship with his sister and her family, particularly with his niece and nephew. After several years in New England, Walter married and moved to Colorado, where he became very successful in the oil and gas industry. Cordelia and Kent remained in New England, where they continue to reside with their respective families.
As the years passed, lives became busy and Walter and his family were not always in close contact. However, in 2004, when Walter’s wife passed away, Cordelia and Kent reconnected with Walter and the three became close again. Cordelia and Kent began talking to their uncle over the phone on a weekly basis and visiting him in Colorado several times a year.
In 2007, Walter retained a highly regarded local attorney to draft his estate plan. Under this plan, he appointed Cordelia and Kent his co-agents under medical power of attorney and financial power of attorney. Walter also nominated Cordelia and Kent as co-personal representatives under his will. Cordelia, Kent, and a few of Walter’s close friends were the only beneficiaries under the will.
In 2008, Walter began to suffer from numerous incapacitating physical ailments, including arthritis and spinal stenosis. By 2010, Walter’s physical health was rapidly deteriorating. On several occasions, Walter checked himself into hospitals and rehabilitation centers due to weakness and debilitating pain. In addition, as his physical health began to worsen, Walter underwent a similar decline in his mental capabilities. Specifically, he became easily forgetful and confused, and periodically struggled with basic reasoning. Walter’s doctors suspected that he was in the early stages of dementia.
Based on Walter’s compromised physical state and cognitive challenges, his doctors believed that it was no longer safe for Walter to stay at home by himself, and strongly recommended placement in an assisted living facility. However, Walter was adamant that he remain in his home. Supportive of this desire, but concerned about their uncle’s safety, Cordelia and Kent took turns traveling to Colorado to stay with Walter for large blocks of time. When neither Cordelia nor Kent could be in Colorado, they checked in daily with Walter via telephone.
In late 2010, Cordelia came to stay with her uncle. When she arrived, it was immediately apparent that Walter had entirely lost the ability to care for himself. Cordelia cared for her uncle as long as she could, but eventually she had to return home. Accordingly, Walter voluntarily entered a temporary rehabilitation program. However, after two weeks in the program, Walter again wanted to move back to his home and resisted any further care-facility placement. Although Walter’s doctors were amenable to his desires, they advised that Walter should not be discharged from his program without 24/7 at-home care.
Cordelia and Kent arranged at-home-care for their uncle with Sarah Oswald, a highly recommended certified nursing assistant (CNA) with years of experience. Oswald was unable to stay overnight, so she arranged nighttime care from another CNA, Millicent Goneril. Goneril was young, inexperienced, and very eager for the job.
For the first week of Walter’s at-home care, Kent stayed in Colorado to ensure that Walter adjusted to his new caregivers. Reassured that Walter was in good hands with Oswald, Kent returned to New England. Shortly after Kent left Colorado, Walter’s care situation changed. Specifically, Goneril started to encroach on Oswald’s daytime position, showing up for her shift early and leaving late. Within two weeks of Kent leaving Colorado, Walter fired Oswald and insisted on having Goneril as his fulltime care provider. Cordelia and Kent were concerned about this change, but Walter was committed to keeping Goneril full-time. Goneril then moved into Walter’s home with her three young children.
Shortly after Goneril took over Walter’s care, Cordelia and Kent began to notice that Walter was less accessible to them. Specifically, Walter no longer answered his phone. Whenever Cordelia or Kent tried to try to call their uncle, Goneril answered. Frequently, she informed them that Walter was busy and unavailable to talk to them.
Around that same time, Walter’s medical providers began to notice that he had developed several deep-rooted misconceptions about himself and his family. Specifically, Walter maintained a delusion regarding his decline in physical health. Walter refused to acknowledge that his age or physical ailments could be the cause of his decline in health and adamantly believed that there was a magic pill that would keep him alive. In addition to the delusions about his health, Walter started to develop a paranoid fantasy that Cordelia and Kent were attempting to place him in a nursing home so they could take his money.
As weeks passed, Walter’s physical health deteriorated to the point that he was fully dependent on Goneril for all activities of daily living. In addition, Walter’s delusions about Cordelia and Kent became more extreme and began to more directly affect his outward behaviors. Eventually, communication between Walter and his niece and nephew broke down entirely. Walter refused to speak to Cordelia or Kent on the phone and refused to see them when they visited. Cordelia and Kent’s only communication regarding their uncle came from medical personnel and social workers who periodically visited Walter.
Approximately a month after Goneril moved into Walter’s home, Walter contacted Cheapo Law Firm (Cheapo Law) regarding changes to his estate plan. Richard Regan, Walter’s neighbor and recent chum of Goneril, retained Cheapo Law on behalf of Walter. When Walter called Cheapo Law to discuss his estate plan, he spoke with Cecilia Cornwall, paralegal to attorney Lester Edmund. After Walter’s phone conversation with paralegal Cornwall, Regan delivered a...
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