Testamentary Capacity (Undue Influence, Duress and Fraud)

• Author: Browne C. Lewis
• Pages: 438-471

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Chapter Ten: Testamentary Capacity (Undue Influence, Duress and Fraud)

10.1 Introduction

A testator’s ability to execute a will may be negatively impacted by the actions of third

parties. The cases in this chapter involve situations where third parties attempt to manipulate the

testator in some way. The level of influence that the third party exerts on the testator varies.

Nonetheless, the third party’s motivation is to get the testator to execute a will that reflects his or

her desires instead of the testator’s wishes. The three most common types of manipulations include

undue influence, duress and fraud. Since duress is a form of undue influence, the concepts will be

discussed in the same section. Following the discussion of undue influence and duress, the chapter

includes an examination of fraud. The chapter ends with a discussion of a relatively new tort,

intentional interference with an inheritance expectancy.

10.2 Undue Influence/Duress

The law does not expect a testator to make estate planning decisions in isolation. Given

family dynamics, it is understandable that the testator may discuss his or her estate planning ideas

with family members. In addition, it is not uncommon for a testator to have a closer relationship

with some family members than he or she has with others. Thus, the testator is bound to be

influenced by the opinions of some members of his or her family. Under the law, some influence is

acceptable; problems occur when the testator is unduly influenced. The legislatures and the courts

have not provided a bright line rule for determining how much influence is too much. The test is

whether such control was exercised over the mind of the testator as to overcome his or her free

agency and to substitute the will of another person so as to cause the testator to do what he or she

would not have done had the influence not existed.

10.2.1 Presumption of Undue Influence

Normally, the person who is challenging the will has the burden of proving that the will was

a product of undue influence. This changes if a presumption of undue influence arises. The person

contesting the will can establish a presumption of undue influence if he or she is able to show (1) the

existence of a confidential relationship; (2) the persons with the confidential relationship received

the bulk of the estate; and (3) the testator had a weakened intellect. All three of these elements are

subjective and evaluated on a case-by-case basis. If the court finds a presumption of undue

influence, the burden shifts to the proponent of the will. That person has to overcome the

presumption by providing clear and convincing evidence that he or she acted in good faith. A

presumption of undue influence may also arise when an attorney receives a bequest under the terms

of a will that he drafts unless he or she is closely related to the testator.

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Noblin v. Burgess, 54 So.3d 282 (Miss. 2010)

MAXWELL, J., for the Court:

Robert H. “Bob” Noblin executed his last will and testament only hours before his death. The

proponents of the will and the sole beneficiaries under it, Sammy Burgess and Sheila McDill,

initiated probate proceedings in Smith County. Noblin’s numerous heirs at law contested the will,

asserting it was the product of undue influence. The trial court granted the contestants’ request for a

jury trial, and the jury returned a verdict in favor of the proponents.

On appeal, the contestants contend that a confidential relationship existed between the testator and

the proponents, raising a presumption of undue influence. They argue the proponents failed as a

matter of law to overcome this presumption by clear and convincing evidence. In the alternative, the

contestants claim the trial court erred in peremptorily instructing the jury that the testator possessed

testamentary capacity. They also argue the trial court erred in failing to grant their proposed

peremptory instruction, which would have directed the jury to find the existence of a confidential

relationship.

We find no reversible error and affirm.

FACTS

Noblin died in the early morning hours of October 3, 2003. He left behind no close “blood”

relatives. Noblin’s closest relatives by consanguinity appear to be an aunt and an uncle. His uncle is

one of the contestants along with multiple first cousins. The proponents, Burgess and McDill, are

Noblin’s stepchildren. Noblin’s only wife, who passed away in 1994, was the natural mother of

Burgess and McDill. But because Noblin never adopted Burgess or McDill, they bear no relationship

to him under Mississippi’s law of intestate succession.

Although Noblin did not make a will until the final hours of his life, he had named Burgess and

McDill as contingent beneficiaries (entitled to payment if his spouse predeceased him) on his

individual retirement accounts (IRAs) and certificates of deposit. In 1989, Noblin listed Burgess and

McDill as his “son” and “daughter” on his IRA applications.

On September 23, 2003, Burgess took Noblin to see a doctor because Noblin had been having

physical problems. Burgess later took Noblin to Lackey Memorial Hospital in Forest, Mississippi.

While there, Noblin’s doctors determined he had widespread liver and pancreatic cancer. Shortly

after this diagnosis, Burgess drove Noblin to Baptist Hospital in Jackson, Mississippi. Soon after

Noblin’s arrival, his physicians determined he had no treatment options other than taking

medication to control his pain. Noblin remained at Baptist Hospital from September 29 until he

died on October 3. Burgess and McDill attended to Noblin during these five days and took turns

spending the night with him.

On October 1, 2003, Burgess called Todd Sorey, an attorney back home in Smith County. The call

was placed from Noblin’s hospital room, where only Noblin and Burgess were present. According

to Burgess, he contacted Sorey at Noblin’s request. Burgess asked Sorey to draft Noblin’s will, and

Sorey agreed to do so. Both McDill and Burgess testified that it was Noblin’s idea, and not their

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own, to make the will. Noblin never spoke with Sorey directly over the phone. Instead, Burgess

talked to Sorey on the phone and relayed information back and forth between Sorey and Noblin.

According to Burgess, McDill, and Sorey, Noblin had a severe hearing problem and was unable to

personally speak to Sorey over the telephone.

Sorey testified he could hear Noblin responding to his questions. He also heard Noblin speaking

about the information he wanted in his will. According to Sorey, he had known Noblin most of his

life and was familiar with his voice. Sorey claimed that he could hear Noblin’s voice over the phone.

He recognized the tone, vernacular, and accent as Noblin’s. Sorey maintained he had no doubt that

he was speaking to Noblin, albeit with Burgess as an intermediary. Sorey testified that he heard

Noblin express his desire to leave all his property to Burgess and McDill.

After this phone conversation, Sorey drafted a will leaving Noblin’s entire estate to Burgess and

McDill. McDill picked up the will at Sorey’s office on October 2 and brought it back to the hospital

in Jackson. Burgess then asked Noblin’s nurse, Lynn Thornton, to find hospital employees to

witness the will. Thornton herself agreed to witness the will. She recruited Corley Callum, also a

registered nurse, to fill the role of the other attesting witness.

Of the two attesting witnesses, only Callum testified at trial. According to Callum, immediately

before witnessing the will, she had a conversation with Noblin. Though she could not remember the

exact exchange, she satisfied herself that Noblin’s will reflected his intent. Callum testified that

through her conversations with Noblin at the time the will was executed, she was able to verify that

“what was taking place was what he wanted to do.”

Noblin executed his will on the afternoon of October 2 sometime between 12:00 p.m. and 3:00 p.m.

He died at 12:10 a.m. on October 3.

PROCEEDINGS AND DISPOSITION IN THE TRIAL COURT

″ollowing Noblin’s death, Burgess and McDill initiated probate proceedings in the Smith County

Chancery Court. The contestants filed a will contest and requested a jury trial. The chancellor then

transferred the case to Smith County Circuit Court, where a jury trial was held.

The trial judge granted a directed verdict in favor of the proponents on the issue of testamentary

capacity. The trial court later gave a peremptory instruction for the jury to find the testator

possessed the requisite capacity to make a will. The court, however, submitted to the jury the issues

of (1) whether a presumption of undue influence arose by virtue of a confidential relationship

between the testator and the proponents, and (2) whether clear and convincing evidence existed to

overcome the presumption of undue influence. The trial court denied the contestants’ request for a

peremptory instruction on issue (1).

Following a three-day trial, the jury found in favor of the proponents, and the trial court entered a

judgment reflecting the jury’s decision.

STANDARD OF REVIEW

In reviewing a jury verdict, we apply the following standard: