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Drafting Trap Proves Litigator’s Life Line

The Michigan Trust Code provides for a fairly strict statute of limitations to contest the validity of a trust agreement that “was revocable at the settlor’s death.”  Most estate planning lawyers presumably operate on the assumption that this protection applies to the revocable trust agreements they routinely draft for their clients. But as this (unfortunately) unpublished Court of Appeals decision explains, whether or not a trust was revocable at the settlor’s death may depend on what the trust says about the incapacity of the settlor while alive.

MCL 700.7604 says that a trust contest must be started within two years from the date of the death of the settlor, if the trust was revocable when they died. The statute also provides a six month statute of limitations if the trustee provides sufficient notice, the requirements of which notice are defined in the law.  Click here to read MCL 700.7604.

In Linda Dice v Esther G. Bennett Revocable Trust (click on the name to read the case) a trust was contested two years and nine months after the death of the settlor.  The trustee moved for summary disposition based on the statute of limitations for such contests as provided for in MCL 700.7604.  The trial court granted that motion.  But the litigants appealed and the COA reversed.  The decision of the COA exposes a litigation opportunity that I expect few trust drafters or probate litigators have considered.

The Esther G. Bennett Revocable trust agreement included a settlor incapacity provision that said:

In the event two  registered  physicians, one of whom should be the Grantor’s  personal physician,  deliver an instrument  to  the  Successor  Trustee certifying that the Grantor during her lifetime has become incapable of managing her own affairs, the Grantor shall cease to be the Trustee, and the successor trustee shall, upon giving its acceptance of trust, become sole Trustee without requiring action or permission of any nature or kind whatsoever from the Grantor, and shall possess and be subject to those rights, duties and obligations which it would assume if it had been named as the initial trustee hereunder. Until two registered  physicians shall  certify that  Grantor has  again become  capable of managing Grantor’s own affairs, any attempt by Grantor to exercise any reserved rights and powers under this Trust, including but not by way of limitation, the right  of modification,  revocation, amendment, withdrawal or  principal and/or receipt or direction of income, or the sale of principles of this trust estate, or change of beneficiary of any insurance policy subject to this Trust, shall be void and during such period of time this Trust shall be irrevocable and not amendable.

In analyzing this case, he COA notes that the definition of revocability in the MTC is a default definition, and can be overridden by the terms of the trust itself. Here the Court concluded that the facts of this case, and the language of this trust agreement, caused this trust to have become irrevocable upon the settlor’s incapacity and, accordingly, the statute of limitations set forth in MCL 700.7604 did not apply.

Interestingly, in this case, a fact issue remains as to whether the medical reports obtained through discovery were sufficient to meet the requirement that two doctors certified the settlor’s incapacity. But that’s an issue for another day.  For the purposes of this blog post, it is enough to say to our readers who draft trust agreements:  It’s probably a good idea to look at the language you include in your settlor incapacity provisions and consider whether a modification may be warranted.  And to the litigators who handled this case: Bravo.  I doubt that many of your colleagues would have recognized this opportunity or pursued it was well.

Probate Appeals: By the Numbers

If you like statistics, you might find this interesting.

With the assistance of a law clerk, we cataloged every case appealed from a probate court between June 1, 2016 and May 30, 2019 (three years), to see what we could find out.

We came up with 144 cases. For the purposes of this blog post, I decided to ignore 26 of those cases. I ignored some cases because, although they arose from a probate court decision, the issues involved were not traditional probate questions.  That is, they were only tangentially probate cases.  I also decided to disregard the mental health commitment cases.  Although these are probate matters, the issues they raise on appeal are so distinct from the other types of probate cases, that it just seemed helpful to leave them out.

As to the remaining cases, here’s what we found:

Publication

90% of probate cases are unpublished (just 12 published out of 118 cases in three years)

Nature of Dispute

58.4% of the cases appealed involved issues related the administration of a trust or decedent’s estate. This category includes a variety of issues that come up in the context of administration, including, for example: efforts to remove or surcharge a fiduciary, fee disputes, and litigation involving property rights or values.

20.3% involved the validity of a will, trust or other testamentary document.

12.7% were guardianship or conservatorship matters that related to the need for, or the appointment of, a fiduciary.

The remaining 8.5% dealt with administrative issues in guardianship or conservatorship matters.

Outcome

Most cases are affirmed. Of course, just because a trial court decision was not affirmed doesn’t mean the trial court was reversed. A case that was not affirmed may have been reversed, remanded, vacated, affirmed in part and reversed in part, etc.. But rather than try to slice things too finely, I simply calculated the likelihood of complete affirmation.

72% of all cases are affirmed in full on appeal.

The likelihood of affirmation seems to vary somewhat with the type of matter. Among trust and estate administrative matters, the likelihood of affirmation is slightly higher than average: 76%.  For cases involving the validity of a testamentary document, affirmation occurs only about 62.5% of the time.  For guardianship and conservatorship cases, the Court of Appeals affirmed 68% of the cases decided during the three years reviewed.

Conclusions

Only a small percentage of probate cases are published: 10%.

A significant majority of the time, the trial court’s decision is affirmed in whole: 76%.

This post deals only with cases in the Court of Appeals. While a few of these cases were taken up by the Michigan Supreme Court, I did not track those.

Thanks to our awesome clerk, Asma Ali, for her excellent work in compiling information and assisting me with this project.

Expressions of Intent: Admissible but Insufficient

Dad holds family meeting before he dies, and says he wants everything to go equally to his six children. He specifically indicates that this includes all assets controlled by beneficiary designation.  His will likewise provides for equal division.  But when he dies, the beneficiary on one IRA is to one of his children, individually.

The other children go to great lengths to show that there were defects in the way the financial institution tracked the paperwork associated with the beneficiary designation on this IRA, which defects, they claim, opens to the door to extrinsic evidence and ambiguity. But their case falls short, particularly because the financial advisor who managed the accounts testified that he had a conversation with the decedent when the account needed to be updated, and the decedent reaffirmed that he wanted to retain the single child as beneficiary.

The case, In re Estate of William Patrick McNeight (click on the name to read the case), offers a good discussion of admissible evidence of intent [hearsay exception 803(3)]; as well as the difference between a contest over a joint account (in which there is merely a presumption of ownership in the survivor) versus a beneficiary designation (which is conclusive subject to being set aside by evidence sufficient to invoke a legal or equitable theory for relief). The case is unpublished.

The trial court decided the case on summary disposition, which was affirmed by a majority of the COA panel. The dissenting COA judge writes that, in light of the amount of paperwork, the number of accounts held by the institution, and the institution’s seemingly imperfect ability to track their own forms, the case should not have been disposed of on summary disposition.  To read the dissent, click here.

A lot of potential litigation matters start with the proposition that: “Our parents always said everything would be divided equally.”  The Appellants in this case did a good job trying to make something of these statements.  But in the end, as with most such matters, that expression simply isn’t enough to overcome a written testamentary document that indicates otherwise.

Judge Jails Trustee/P.R.

A new unpublished case offers a helpful refresher on contempt proceedings in the context of trust and estate administration.

“Vera” was removed as co-trustee and co-personal representative of her mother’s trust and estate. After her removal, the probate Court determined that Vera had deeded herself real property that she was not entitled to receive.  The Court ordered Vera to sign a deed conveying the property back to the trust and threatened incarceration if she did not comply.  In open court, Vera refused to sign the deed as ordered.   But the trial judge did not immediately send Vera to jail for her contempt.   Rather, the Court  issued an order which allowed her time to consider her situation and to “purge the contempt” by signing the deed at a later time.  The Court explained that if she failed to do so, she would be jailed for her contempt at some later date. When that time passed and Vera still refused to comply, the Court issued a recordable order correcting title to the disputed real estate and sent Vera to jail for seven days for contempt.

The Court then ordered Vera to account for her actions as Trustee and P.R. for the period of time prior to her removal. When Vera refused to provide what the Court considered adequate accountings, she was again sent to jail for contempt, this time until she decided to cooperate.

Vera appealed both orders pursuant to which she was jailed.

In this opinion, the COA explains that there are two kinds of contempt. Criminal contempt is imposed for actions which are an affront to the Court, and which occur in the immediate presence of the Court.  The purpose of criminal contempt action is to punish the wrongdoer for disrespecting the Court’s authority.  Civil contempt is imposed for violating a Court’s order and continues until the contemptuous party complies.  The purpose of a civil contempt action is to coerce a person to comply with an order of the Court.

The COA says that the trial Court was wrong when it jailed Vera for not signing the deed. Although the trial Court could have done so as an exercise of its criminal contempt powers when Vera first refused in open court to comply with the Court’s order, by delaying the punishment and giving her the opportunity to remedy the wrong, this became an exercise of civil contempt powers.  That is, the purpose of the order was not to punish Vera for disrespecting the Court’s authority, but rather to coerce her into signing the deed.  However, when the trial Court finally sent Vera to jail for refusing to sign the deed, the Court had already issued its own order invalidating Vera’s wrongful deed, and therefore there was no longer any coercive purpose to the Court’s sentence, the matter having been remedied by alternate means.  As such, this jailing failed to meet the requirements of either a civil or criminal contempt proceeding.

As to jailing Vera for refusing to provide appropriate accountings, the COA says that this was a proper exercise of the trial Court’s civil contempt power.  That jail sentence was designed to coerce Vera to provide information known to her, which she was ordered to produce, and which she had a legal obligation to provide.

So, clients who don’t follow Court orders can go to jail for contempt. Courts must be careful about how these contempt powers are exercised, and must make appropriate distinctions between civil and criminal contempt powers.

The case is called: In Re Estate of Lois C. Washington.  Click on the name to read the opinion.

 

New Medicaid Case Revisits Spousal Income Diversion

A newly released unpublished opinion of the Court of Appeals looks again at the authority of the probate court to issue a protective order in the context of a married person in a nursing home who is receiving Medicaid benefits, when that order impacts how much of the income of the nursing home resident can be diverted to support their spouse in the community. The case is called In Re Michael DeClerck.  Click on the name to read the case.

This case follows the Vansach decision which was published in May 2018, and which I blogged about at that time.  That post was called Medicaid Planners Get Rare Win from COA Click on the name to read that post.

As would be expected, this panel of the COA remands the case to be decided in the context of Vansach, which basically requires the probate court to make certain findings about the needs of the parties in order to support the diversion of income granted.  What is interesting, and perhaps helpful, about this opinion, is that it also directly addresses the argument of the appellant (the Michigan Department of Health and Human Services), that the probate court lacks jurisdiction to issue these orders unless and until the appellee exhausts their administrative remedies.  The COA rejects this argument, which is good news for Medicaid planners.

The issue is important to planners and to the State for the reason that the more income that is diverted to the community spouse, the less that is paid to the nursing home by the Medicaid beneficiary as their “patient pay amount,” and the more the State has to pay for the nursing home resident’s care.

DHHS policy provides a formula for determining how much of the income received by a married Medicaid beneficiary in a nursing home is contributed toward their own care (the “patient pay amount”), and how much, if any, can be diverted to support their spouse in the community (the “community spouse income allowance”). DHHS policy offers two alternate processes for obtaining an exception to the default formula.  One way is to file an administrative appeal, the other is to obtain a court order.   Medicaid planners almost always take the probate court route, because the administrative route is perceived to be bias against them to the point of futility.

In this case, the COA rejects the DHHS argument that the Medicaid recipient must first go through the administrative process, and lose, before they can petition a probate court for relief.  The COA holds that, pursuant to Medicaid policy, a court order and an administrative appeal are simply alternative options, and that there is no requirement to go through the administrative process before petitioning a probate court.  This result is certainly implicit, if not express, in the Vansach opinion.  Arguably, in Vansach, the DHHS argument focused only on the proposition that the probate court simply lacked jurisdiction and that the administrative process was the exclusive process.  In this case, the issue is framed slightly differently, but the result is the same. Probate Courts may issue these orders, and DHHS must accept the probate court’s decisions.  Per Vansach, the probate courts must base their orders on certain findings regarding the needs of the parties involved.

Thanks to our friends at the Mannor Law Group for their work on this matter.

A Corktown Hotch Potch

UPDATE:  The case of In Re Monier Khalil Living Trust was first published March 12, 2019.  For reasons I do not fully understand, the Court of Appeals granted a motion for reconsideration, vacated its original opinion and issued a new opinion on May 14, 2019, also published.  Click here to read on the newer and final opinion.  The outcome seems to be the same, and my analysis below is not altered.

 

This is a published Court of Appeals probate case which looks at the limits of a trial court’s authority to dismiss an action on its own initiative.

The case is called In Re Monier Khalil Living Trust (click on the name to read the case).

Spouse died leaving property in trust for the surviving spouse, Evelyn. Evelyn was given the right to all income, an unlimited power to invade principal, and the power to redirect or distribute trust property to others, during her life and upon death.  Further, Evelyn’s decisions with respect to all matters were expressly not subject to review.

Among other things, the trusts contained business and real estate interests in Detroit’s trendy Corktown neighborhood.

Evelyn began exercising her powers to distribute trust property among her children, and did so unequally as the document allowed. After several years, the children who felt they were getting shorted sued, claiming that, among other things, Evelyn was being unduly influenced.

The trial judge held several in-chambers conferences with the lawyers, but did almost nothing on the record in the courtroom, and ultimately dismissed petitioner’s case sua sponte. The petitioners appealed.

Baldwin’s Foil

I think the reason this case was published is because the COA had to rely on an unpublished opinion to get to the result it wanted.

Appellees relied on In Re Baldwin Trust 274 Mich App 387 (2007), a published case in which the COA upheld a trial court after it had dismissed a matter sua sponte when the trial judge had essentially heard enough.  Appellants, however, had to rely on an unpublished decision: In Re Clemence Trust (COA docket 332099, October 31, 2017), in which the trial court was reversed after doing the same thing. Click on those case names if you want to read those cases.

In this matter, the COA spent several pages explaining how the facts between the two cases differed, and how the facts of this case were more like Clemence than Baldwin.  One clear point of irritation to this panel of the COA was that this trial judge did everything, or nearly everything, in chambers, and left the COA with almost no record to review.  As a result of this analysis, the COA reversed the trial court’s decision and remanded the matter for further proceedings “on the record.”

With this decision there is now a published decision to rely upon as a foil for Baldwin.  The law seems to be that while probate trial courts may at times dismiss cases sua sponte, the decision to do so is subject to review.  Among the factors to be considered in deciding whether the trial court acted properly, is the extent to which the trial court allowed the aggrieved party to create a record.

The Whimpiness Factor

Another point made by the COA is that the petitioners never actually formally requested a hearing on the record, and never actually initiated discovery as they are empowered to do. In most cases, the COA would say that they therefore had abandoned their right of appeal on these issues.  But here, the COA allows those issues to serve as the basis for their decision – but not without some heat:

The attorneys also deserve a share of the blame for our inability to properly review this case. It is incumbent on counsel to insist on a record of critically important proceedings, even in the face of judicial disapproval or disagreement. A written motion to create a record might have avoided the need for this appeal.

[I recognize that some litigators who practice regularly in Wayne County (and perhaps other courts) might suggest that this behavior is not whimpiness at all, but rather a matter of survival.]

[When and how to challenge a controlling trial judge is a topic for another day.]

A Hotch Potch B’Gosh

So finally: What is a Hotch Potch?

This case was started with a “Petition for …. return of property to hotch potch…”

This opinion informs us that hotch potch (aka “hotch pot”) is a legal term of art, albeit an “antiquated” one.  Basically, it means: squaring things up before distributing the estate when numerous advancements have been made to the greedy kids.  Nice to have a label for it, or I should say, a label that can be used in polite company.

 

Reflections from a Costly Goose Chase

The crux of this unpublished opinion is whether the cost of litigation initiated by a conservator that turns out to be a big waste of money, should be paid out of the estate.

In In Re Conservatorship of Marilyn Burhop the probate court appointed a local lawyer (“Jones”) as conservator over a vulnerable adult (click on the name to read the case).  Jones learned that prior to her appointment, the ward, Marilyn, transferred nearly $500,000 to certain acquaintances (the “Sirchias”).  In addition, Marilyn changed her estate plan to benefit the Sirchias exclusively.

After some preliminary investigation, Jones decided to sue the Sirchias to recover the funds and to initiate litigation to set aside the estate planning changes. After incurring about $175,000 in legal and fiduciary fees, Jones settles. Curiously, perhaps conveniently, the COA fails to share the details of the settlement – such as whether the conservator recovered anything. But reading between the lines, it seems that Jones simply dropped the case.  The issue then became whether the massive fees that Jones and her attorneys charged to pursue this litigation should be allowed as expenses of the estate, when, in the end, the estate received no benefit.  The trial court allowed the fees in their entirety, and the order allowing those fees is what was appealed and affirmed.

Here’s what I think:

Seek Instruction

The way this case begins is all too common. These days, conservators are often appointed to protect a vulnerable adult from financial exploitation, which exploitation may have already begun.  Accordingly the question of whether the conservator should simply protect what’s left or pursue recovery of what may have been improperly removed is typical.  In this case, Jones apparently did some preliminary investigation before initiating litigation, but what Jones did not do, and what I think was her initial mistake, was to ask the probate court for instruction.

In our firm, when handling these matters, we commonly to seek court instruction at the outset. We ask the court to authorize the conservator to pursue litigation and also to enter into an engagement with our firm.  In that process we present the court with the proposed engagement letter.  We don’t do this in every case, but I am thinking we will start doing it more often.

Certainly, it seems to me that, before Jones was $175,000 into the litigation, she should have gone before the court and asked whether this matter should continue to be pursued and at what cost. Perhaps the court would have told her not to pursue the litigation at all, perhaps the court would have found that a contingency fee arrangement would have been more appropriate, or perhaps the decision to drop the matter would have been made at an earlier date?  We won’t know, because court instruction was apparently never requested.

Asset Recovery v Estate Plan Changes

In this opinion, the COA fails to address what I think is a critical distinction. The appropriateness of a conservator seeking to recover misappropriated funds is one thing, challenging estate planning documents is quite another.

With respect to misappropriated funds, such funds would become property of the conservator, would provide additional resources to benefit the ward during her remaining life, and failure to pursue recovery in a timely manner would present the possibility that a statute of limitations would be missed or that the funds would be dissipated and become unrecoverable.

Challenging the estate planning documents is different. Assuming the changes are strictly with respect to testamentary disposition, setting them aside would not increase the resources available to provide for the ward’s needs, and in most cases there would be no statute of limitations to worry about.  In fact, our laws are structured so that such changes are disclosed to the real parties in interest upon death (or in the case of a trust, upon incapacity) and the real parties in interest are empowered to protect their own interests at their own cost.  If there is any argument that a conservator would have a reason to engage in litigation over the validity of estate planning documents, it would be with respect to MCL 700.5428 which imposes duties on the conservator to manage resources in manner that does not disrupt the known estate plan.  Accordingly, for instance, if there are specific gifts, beneficiary designations or joint accounts, in deciding what resources to dissipate on the needs of the ward, the conservator must take into account the impact of those decisions on the overall estate plan of the ward.  But this issue was not raised in this case, and if it were, the appropriate approach would seemingly be to seek court instruction regarding the use of resources.

To my thinking, the decision of this conservator to spend money litigating the validity of the estate planning documents in this case is highly questionable.

Disregarding Valentino

There is an old rule that says a fiduciary is entitled to fees when what they have done has benefitted the estate. The 1983 Michigan Court of Appeals case In Re Valentino Estate, 128 Mich App 87 (1983) is often cited for this rule.  This opinion holds that Valentino was superseded by EPIC.  Well, that’s news to me.  First, I would be interested in knowing whether there is any published authority for that conclusion, I know of none and they cite none.  Further, it is worth noting that as recently as 2010, with the adoption of the Michigan Trust Code, the concept of a benefit to the estate being a basis for allowing fees was seemingly recognized in MCL 700.7904.  While that law relates to a non-fiduciary’s claim for recovery of fees from a trust, the commentary cites cases much older than Valentino for this rule.

Outspent

A common litigation strategy is to simply outspend your opponent until they wilt. In this case, the COA asserts that the Sirchias did just that.  The COA says the Sirchias engaged in a “scorched earth” litigation strategy, noting that no less than sixteen motions for summary disposition were filed (and denied).  The suggestion is that Jones may have had a case, but only relented because she was running out of money to spend on the litigation.  Seems plausible.  But where in the law does it say that in deciding whether to initiate litigation the conservator should assume that the opposing party will play nice? Rather, I think, this is all the more reason that Jones should have sought court instruction before starting this fight, should have limited the scope of litigation to asset recovery, or retained counsel on a contingency basis.

A Duty to Litigate

In passing the COA in this opinion says that Jones would have been negligent “under the circumstances” not to have pursued this litigation. Um.  Not a published decision so I guess I will leave that conclusion alone.

The Specter of Bleak House

Let’s step outside our bubble for a minute and look at this from the perspective of the Sirchias. The estate of someone they apparently had a close relationship with is diminished by $175,000.  Their inheritance is diminished by $175,000.  They presumably had to spend a similar amount defending themselves against claims that, in the end, were dropped.

Many people (who are not probate lawyers) perceive the probate court as a place where the property of the dead and dying is consumed by a hungry pack of lawyers and court officials. It’s an unflattering image that dates back centuries. Without passing judgment on anyone involved in this sordid affair, you can’t help but acknowledge, I think, that this case sort of feeds into that perception.

Conclusion

I’ve gone on long enough.

Many many conservatorship cases arise where something is amiss and prior conduct may give rise to the possibility of financial exploitation of the ward. Whether the conservator tries to remedy those wrongs and recover the missing assets, or to simply move forward and do their best with what they have control over, is often a decision they need to make.

I don’t mean to beat up on the conservator in this case, or to suggest that she didn’t act in good faith. Jones may well have been justifiably outraged by the actions of the Sirchias in the period prior to her appointment as conservator. But even giving this conservator the benefit of every doubt, in the end, it is hard to say that the ridiculously unfavorable outcome of this case could not have been ameliorated, perhaps avoided, had other reasonable decisions been made along the way.

Litigation Strategies Part IX: Six pages of: “You Lose”

I was reading an unpublished court of appeals opinion the other day. It was six pages long and pretty much every part of it could be summarized as: “and therefore the Appellant loses.”

I read most every probate case that comes out, published and unpublished, and I write about a few of them, but I ignore most of them. The ones I ignore are ignored because they don’t say anything important.  Someone lost at the trial level and decided to appeal.  A lot of times the case they had in the trial court was lame.  But, other times it seems like their case may have had merit, but because of the way the matter was handled during trial, at the appellate level, their case stinks.

The morning after I finished the first day of a trial, I was reading a case which was typical of the type of cases that I ignore. And it occurred to me that all these years of reading about all these bad appeals has changed the way I practice, the way I try a case.

I’ve become “that guy.”

In court the prior day, I was annoying; putting opposing counsel (a nice person) through their paces as they tried to admit records and examine witnesses; objecting to foundation; objecting to relevance; objecting to hearsay; arguing that a question was outside the scope of cross exam.

I used to hate lawyers like that. But now I am that.  Not always, but if the case is the type of case that if I lose I might want to appeal, I do those things.

What I understand now, that I didn’t fully appreciate when I was less experienced, is that when a case is appealed, the Court of Appeals will go out of its way to affirm the trial court. And if they can affirm the trial court because an objection wasn’t made or an issue wasn’t preserved, they will.  Affirming the trial court on technical grounds is easier than getting into the more challenging questions of law and fact that were the focus of the case when the appellant hired a lawyer and went to trial in the first place.

So, my thinking is: Don’t make it easy for the COA. When you try a case, in addition to doing what needs to be done to persuade the fact finder to rule in your favor, make sure you create a record that would force the COA to look at the substance of the case if your lose at trial.  Keep bad stuff out if you can.  Get in all the evidence that supports your position, even if it seems like overkill at times.  And most of all: make objections and preserve issues.

Someday I might take the time to count, but, just guessing, I bet 90% of probate cases that get appealed, get affirmed. And that isn’t because all of those cases couldn’t or shouldn’t have been won.

Bottom line: Being “that guy” or “that gal” may be uncomfortable at times, but if you want to avoid having to explain six pages of “you lose” to your client, it’s just the way it has to be.

Point of Clarification: This post is about trial practice in cases that would justify an appeal if you lose.  Being “that guy” or “that gal” in depositions, or in hearings on matters that no one is ever going to appeal, remains just plain obnoxious.

Capacity Case Illustrates Witness Weight

This unpublished opinion provides an opportunity to discuss the types of witnesses that are often involved in lack of capacity and undue influence cases, and how they are weighed at the trial level.

The case of is called In Re Estate of Aurelia Rokosky (click on the name to read the case).

Aurelia lived alone on Grosse Ile. She apparently had no spouse or children.  But she had a friend who lived nearby until 1994 when this friend moved to Portland, Oregon.  In 1976 Aurelia prepared a will leaving everything to this Portland friend.

In 2008, when Aurelia was 86, she developed a new friendship with a person in Michigan. This Michigan friend helped Aurelia with her shopping and housework.  In 2010, this Michigan friend began helping Aurelia with her bill payment and finances.

Aurelia also had a neighbor (“Neighbor Bill”) with whom she had a good relationship until mid-2010. Before their friendship broke off, Neighbor Bill observed that Aurelia suffered from significant confusion, that she was unable, for instance, to operate her television, and that she repeated herself frequently. Their relationship ended, Neighbor Bill claimed, because Aurelia became paranoid.  At one point in late 2010, Neighbor Bill called the local police department because he was afraid that Aurelia was not safe living alone, but the police found her home and living situation to be in reasonable order.

On January 24, 2011, Aurelia saw a lawyer and had a will prepared leaving everything to the Michigan friend. The lawyer testified that she was clear and coherent at their meeting, and that she had testamentary capacity.

That same day, when Aurelia arrived home, she called Neighbor Bill several times, each time in an agitated state, and each time explaining that she had arranged for her estate to pass to the Michigan neighbor at her death.

A few days later, Neighbor Bill and others who knew Aurelia became concerned that they had not heard from or seen Aurelia. The police were called.  Aurelia was found in her home in her bathtub fully clothed.  It is unclear how long she had been in the tub, and she was taken to a hospital where a doctor evaluated her cognition and deemed her to be “profoundly confused.”

Aurelia was discharged from the hospital to a long term care facility where she lived the remainder of her life and died in August, 2013.

Also, it is important to note that in September 2011, Aurelia met with a second lawyer and executed a ladybird deed leaving her home to Michigan friend at her death. That deed was deemed invalid, and that decision was not appealed.  But the second lawyer also testified that as of September 2011, when Aurelia met with him, she had testamentary capacity.

And finally, the Portland friend, in contesting the validity of the will, employed an expert witness, a geriatric psychiatrist, who reviewed the Aurelia’s medical records and opined that Aurelia lacked testamentary capacity on January 24, 2011 (the date of the will) and for every day thereafter.

After receiving all of this testimony, the trial court admitted the 2011 as valid on summary disposition, and the Portland friend appealed.

So, to sum it up, besides the presumably self-serving testimony of the parties themselves:

  • There are two lawyers who met with Aurelia and who testified that Aurelia had testamentary capacity in January 2011 and in September 2011.
  • There is a police report that indicates that Aurelia’s home was reasonably maintained in mid-2010.
  • There is an uninterested fact witness, Neighbor Bill, who testified as to Aurelia having clear signs of cognitive impairment before the 2011 will was executed, and that Aurelia became severely agitated and confused on the very date she signed the will, leading to hospitalization a few days later.
  • There is the evidence that the Michigan friend, a fact witness who seeks to have the will upheld, cannot dispute, which is that she was helping Aurelia with her daily activities, including her finances, before the will was signed.
  • There is a medical opinion from four days after the will was signed, when Aurelia was in the hospital, that she was demented and severely confused.
  • There is an expert opinion that she lacked testamentary capacity on the date the will was signed.

Indeed it is difficult to understand how a trial judge would think that, with all this evidence, this case could be decided on summary disposition. And you will not be surprised to learn that the Court of Appeals reversed that order and remanded the case for trial.  But this case illustrates some important points about how these cases can be viewed at the trial court level, and what witnesses carry the most weight, including:

(1) Trial judges often place great weight on the testimony of the lawyers they know. Capacity is, after all, a legal question and lawyers who regularly prepare estate plans are considered experts in evaluating whether their clients meet the standards of testamentary capacity.

(2) Capacity is presumed. The burden is on the contestant to overcome the presumption of capacity.  In any case where there is a lawyer who prepared the document, this presumption and the testimony of an experienced estate planning attorney, carries great weight.

(3) Testamentary capacity is a low standard.

(4) The “lucid moment” concept is far from dead. Even though Aurelia was deemed incompetent only a few days after the execution of the will, and even though she spent those few intervening days in a confused and agitated state, and even though there is ample evidence of age-related cognitive decline even before the will was signed, the trial judge presumably had no problem concluding that she was clear and coherent at the moment she signed the will, as her attorney testified.

These are the types of witnesses that often exist in lack of capacity/undue influence cases. What we can take away from this example, I think, is that challenging documents prepared by an experienced lawyer is tough sledding, but can be accomplished.  As in this case, expert opinions have become standard practice, and are often critical to surviving summary disposition.  Solid testimony from an uninterested fact witness can also be very valuable.  And, as I have suggested before, surviving summary disposition is often the first objective.  When a case is heading to a jury, the parties each face significant risk and the possibility of settlement increases accordingly.

Published Opinion: No Immunity for Retained Expert

This question could have come up in some other type of case, but it came up in a probate case and that case is published, so I’ll write about it – briefly.

The question is: Can I sue my own expert witness for malpractice?

The answer is: Yes.

That answer did not surprise me.

To read Estate of Voutsaras v Bender et al, click on the name.