Agatha Christie, Probate Litigator: Proving a Will Contest Through Circumstantial Evidence
| Publication year | 2002 |
| Author | By Michael B. McNaughton, Esq. |
By Michael B. McNaughton, Esq.*
The next best thing to a good murder mystery is . . . a will contest. All the elements are present: the victim (the deceased testator); a suspect (the will's proponent); interested friends, neighbors and caretakers (each with his or her own opinions, motives and versions of events); and the "smoking gun" (in this case, the will itself).
The mystery for the judge1 to solve is to determine how the will - often created near the time of death and drastically changing the deceased's long-established estate plans - came to be. Was it the volitional act of a competent testator? The product of undue pressure by a caretaker or confidant? The scribblings of a delusional man? What role did greed or sex play?
As with any murder mystery, there is rarely any direct evidence in a will contest. The victim, of course, is dead. The suspect, if the contestant's theory is correct, certainly cannot be trusted. And no other witness likely was present during the critical events, which usually began sometime prior to the actual signing of the instrument.
As with any murder mystery, there is rarely any direct evidence in a will contest. The victim, of course, is dead. The suspect, if the contestant's theory is correct, certainly cannot be trusted. And no other witness likely was present during the critical events, which usually began sometime prior to the actual signing of the instrument. With this scene in place, how can a probate litigator prove that the will was the result of foul play? This article identifies some of the problems of proof that the contestant must overcome; some of the statutory and common law rules available to meet his or her burden; and some practice techniques that will assist a probate litigator to successfully prosecute a will contest.
The initial burden of proof is on the contestant on each ground, including lack of testamentary capacity and undue influence.2 In contests based on capacity, the testator is ordinarily presumed competent at the time of execution.3 The standard to overcome that presumption is high. Absent-mindedness, feebleness, failure to recognize old friends and relatives and eccentric behavior, by themselves, will not suffice.4 Delusions or hallucinations unrelated to the testamentary act are not sufficient.5 That the testator was adjudicated in need of a conservator is not enough.6 Instead, the evidence must be sufficient that at the time of execution the testator was unable to understand: the nature of the act; the nature and situation of his or her property; or his or her living relatives (i.e., the "natural object of his bounty"). Or the evidence must show that the testator suffered from delusions or hallucinations that did affect the testamentary act.7
Testimony from relatives and friends may not always be reliable. It is human nature to remember (and reminisce about) our loved ones in their best light. We prefer to recall our departed friends at the height of their mental powers and, when asked about their declining years, will remember the moments of lucidity best or the occasional joke which "proved," despite declining health, that our friend never really "lost his marbles." Most friends or relatives probably did not look or test for signs of senility during their encounters with the testator, and very few will have the necessary training or background to do so. Senile dementia patients are often successful in "masking" their deficiencies by, for example, avoiding extended conversations.
Contests based on claims of undue influence have their own special challenges. Direct evidence is scarce. Perhaps a nosey housekeeper was nearby or some damaging letters were left. That is unlikely. By its nature, undue influence is based on conduct that is subtle, insidious and occurs behind closed doors in interactions solely between the influencer and the testator. Unlike murder, the act of undue influence is hard to define or detect. As one court recognized, "undue influence, obviously, is not something that can be seen, heard, smelt or felt."8
Unlike duress (which causes someone to perform some act against his or her will), undue influence causes the victim to adopt the will of the accused (seemingly voluntarily, but really as the result of some unfair advantage). This creates problems of proof: the proponent will always claim that the victim truly intended to make the gift, and at some level that may be true. The proponent honestly may even believe that the act was purely voluntary. It is not surprising to hear a full-time caretaker explain that her patient "really wanted me" to receive the gift, without appreciating the role that the patient's diminished capacity and total dependence on the caregiver played in that decision. Mere encouragement is not
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enough. Rather, there must be proof that the testator's free will was completely overborne by influence, causing him or her to make a disposition contrary to the testator's true desires.9
Against these obstacles, it hard to imagine how a contestant can ever succeed. In truth, will contests are difficult to win. But the law is not unmindful of the challenge. To the contrary, a number of rules have been developed - both through case law and by statutes - that attempt to address these problems of proof associated with will contests, where direct evidence is understandably not available.
In contests based on either lack of capacity or undue influence, the law allows proof by circumstantial evidence. "Circumstantial evidence" is evidence that is not based on a direct observation or recording of the fact in controversy (e.g., a videotape of the crime scene or the testimony of an eyewitness). Instead, it is evidence of other facts from which reasonable deductions or inferences may be drawn as to the ultimate fact in controversy (e.g., evidence that the suspect was the last person to see the murder victim alive and that the victim's wallet was found in his briefcase.)
Proof of lack of capacity may, and often must, be established through a body of circumstantial evidence. For example, signs of dementia prior and subsequent to the date of execution may allow a judge to infer that the testator lacked the ability to make a rational decision on that precise date. Likewise, proof of undue influence may be established through evidence of surrounding circumstances from which a judge may infer that, when the testator actually signed the instrument, his or her true will was overtaken and supplanted by another's influence
In most cases, contests based on a lack of capacity will turn on the testimony of expert witnesses: family doctors, neurologists, psychologists, psychiatrists and geriatricians. In some cases, one or more of these will have examined the testator in his or her life time. If not, the expert must perform a post mortem diagnosis based on all available data. The litigator should be aware of certain legal principles and discovery strategies to provide the expert with a sufficient record from which to form a credible opinion.
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