What were the facts in Kauffman?, p. 191

1. What were the facts in Kauffman?, p. 191 • Robert Kauffman was a multimillionaire by virtue of inheritance and developed an intimate relationship with Walter Weiss after moving from DC to NYC to establish a life independent of his family • Between 1951 and 1958, Robert executed a series of wills, gradually giving more of his estate to Walter and less to his family. • He also wrote a letter with the 1951 will that was attached to each successive will explaining to his family why he was “eternally grateful” to Walter • Robert’s family did not like Walter, whom they thought gave Robert interfering business advice about the family-owned Kay Jewelry stores

2. In re Kaufmann’s Will, p. 191247 N.Y.S.2d 664 (App. Div. 1964), aff’d, 205 N.E.2d 864 (N.Y. 1965) In re Kaufmann’s Will Family: Kay Jewelry Robert Kaufmann Walter Weiss

3. Was there undue influence, pages 184-185? • Was there a confidential relationship? • Court saw a dominant-subservient relationship • Were there suspicious circumstances? • Robert’s attitude toward his family changed as a result of his relationship with Walter • Disposition in will was unnatural? • Another case reflecting the social mores of its time

4. What were the facts in Lipper v. Weslow?, p. 193 • Sophie Block left her estate to her children from her second marriage, with nothing for the family of her deceased son from her first marriage • What were the grounds for a claim of undue influence? • Her son from her second marriage wrote the will (confidential relationship and suspicious circumstance) • The son got one-half instead of one-third of the estate (unnatural/unfair and therefore a suspicious circumstance) • The son did not read the will to Sophie before she signed it • The son bore ill will toward his half brother, had a key to Sophie’s house and therefore had the opportunity to prevent her from receiving cards and flowers from her deceased son’s family

5. Lipper v. Weslow Lipper v. Weslow369 S.W.2d 698 (Tex. Civ. App. 1963) Sophie Block Mr. Lipper Mr. Weslow Bernice Julian Irene G. Frank Julian Julia Alice

6. Was there undue influence? • What was unusual about the court’s legal analysis? • It put the burden of proof on the contestants rather than shifting the burden after the showing of a confidential relationship and suspicious circumstances • What was bad about the son’s writing of the will? • He wrote Sophie’s explanation in legalese rather than having her write it in her own words, and he put it in the will rather than create it as a separate document • He didn’t let Sophie see the will in advance or share it with independent counsel • He included a no-contest clause without leaving anything to the deceased son’s family • Was there sufficient evidence to overcome the claim of undue influence? • Sophie was in excellent health and of sound mind; her will was consistent with the testimony of friends

7. Bequests to Attorneys • Undue Influence • Many courts hold that a presumption of undue influence arises when an attorney-drafter receives a legacy, except when related to the testator. • Unethical Conduct • “A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient … is related to the client.” Model Rule and Ind. Rule 1.8(c) • Fiduciary Appointments • “In obtaining the client’s informed consent to the conflict, the lawyer should advise the client concerning the nature and extent of the lawyer’s financial interest in the appointment, as well as the availability of alternative candidates for the position.” Model Rule 1.8(c), comment

8. Will Contest Planning • Contest Grounds • Most common grounds for a will contest are lack of capacity and undue influence. • Often alleged together; testator’s mental status overlaps with the susceptibility element of undue influence. • Warning Signs • “Unnatural disposition”—e.g., omission of child or unequal shares for children • New testamentary scheme makes a radical departure. • Multiple or blended families. • Imposes conditions that are likely to anger the beneficiary. • Makes a disposition to a person unpopular with the testator’s family.

9. Precautionary Measures, pages 205-206 • Record Building • Letters between lawyer and • client • Recorded video discussion • Professional examination of capacity • Maintain Secrecy • Inter vivos • trust • Inter vivos • gifts • Soothe Feelings • Family • meeting • Letter or • video explanation • Disinterested witnesses • with affidavits • Inter vivos trust

10. Inter vivos trusts • In will challenges, the basic question facing the court is whether the testator really intended the dispositions in the will • With a trust that has existed for an extended period of time, it’s easier to persuade the judge that it genuinely reflects the wishes of the grantor • Trustee will be able to testify to the grantor’s capacity based on series of interactions • In addition, if a long-standing trust is invalidated, months or years worth of transactions are invalid. Trying to undo all of those transactions, many of which involved innocent third parties, will discourage many courts from findings of incapacity

11. Inter vivos revocable trusts • As a practical matter, challengers will need to contest trusts immediately. But how will they know about them? And if they do find out, they may be reluctant to antagonize the grantor, who can rewrite any trust or will • In the Kauffman case, then, Robert would have been better off had he established an inter vivos trust • Other useful steps would have been to make a bank the trustee, rather than have Walter handle business matters, and to rewrite or update the 1951 letter with each successive will

12. C. Fraud

13. Forms of Fraud • Fraud • Testator is deceived by a deliberate misrepresentation and as a result does that which s/he would not have done. • The misrepresentation must be made with the intent to deceive the testator and a purpose to influence the disposition • Fraud in the Inducement • A misrepresentation causes the testator to execute or revoke a will, to refrain from executing or revoking a will, or to include particular provisions in the wrongdoer’s favor. • Fraud in the Execution • A person intentionally misrepresents the character or contents of the instrument signed by the testator, which does not in fact carry out the testator’s intent.

14. Remedies for fraud • Invalidate the fraudulently procured provision • Refuse to probate the will • Probate the will and impose a constructive trust

15. What were the facts in Puckett v. Krida?, p. 209 • Two nurses were hired to care for Nancy Hooper after she returned home from being hospitalized with Alzheimer’s disease • By misleading Hooper into thinking her family was misappropriating funds, the nurses were able to obtain a power of attorney, a deed and dispositions in her will

16. Puckett v. Krida Puckett v. Krida,1994 WL 475863 (Tenn. App. 1994) Nurse Krida Nancy Hooper Nurse Reeves Jean Law (niece)

17. Was there undue influence or fraud? • There was a confidential relationship from the nurse-patient relationship and power of attorney • There was a suspicious circumstance from the deliberate misrepresentations that changed Ms. Hooper’s attitude toward the niece and induced her to favor the nurses • This court, like others, applies the same burden-shifting rules for fraud as for undue influence

18. D. Duress

19. Duress • When undue influence becomes overtly coercive, it is called duress. • “A donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made.” • Restatement (Third) of Property: Wills and Other Donative Transfers §8.3(c) (2003). • The law invalidates transfers compelled by duress.

20. What were the facts in Latham v. Father Divine?, p. 210 • Mary Lyon had executed a will three years before her death, in which she left her estate to Father Divine, two corporations affiliated with Divine and an individual follower of Divine • Lyon’s first cousins claimed that she planned to execute a new will leaving much of her estate to them, but that Divine and the others stopped her, first by using physical force and then by killing her during surgery

21. Latham v. Father Divine Latham v. Father Divine, 85 N.E.2d 168 (N.Y. 1949) Affiliated Corp. 2 Mary Lyon Father Divine Affiliated Corp. 1 Follower

22. The Value of a Constructive Trust • Invalidating the will would not have helped the contestants since they claimed that duress prevented Ms. Lyon from executing a new will that favored them • Had the will been invalidated, the estate would have gone to Ms. Lyon’s intestate heirs (the contestants were cousins but not next of kin, p. 210)

23. Undue Influence “A donative transfer is procured by undue influence if the wrongdoer exerted such influence over the donor that it[:] • overcame the donor’s free will and • caused the donor to make a donative transfer that the donor would not otherwise have made….” • Restatement (Third) of Property: Wills and Other Donative Transfers §8.3(b) (2003).

24. Presumptions & Burden Shifting Presumption of Undue Influence (Burden Shifting) Suspicious Circumstances Confidential Relationship Types of Confidential Relationships: • Fiduciary (attorney, appointed agent) • Reliant—special trust and confidence (financial adviser, physician) • Dominant-subservient (feeble adult and caregiver or adult child) Examples of Suspicious Circumstances: • Secrecy or haste • Participation of wrongdoer in drafting of will • Reasonable person would regard it as unnatural, unjust or unfair • Donor’s attitude toward others changed by reason of his relationship with the alleged wrongdoer = +