Posted On: December 28, 2011 by Duncan H. Adams and Kasey C. Libby

WILLS, TRUSTS AND ESTATE DISPUTE LAWYERS IN ATLANTA, GEORGIA USE UNDUE INFLUENCE AS A DEFENSE IN WILL CONTEST, ESTATE LAWSUITS, PROBATE DISPUTES, AND MORE – HERE IS HOW!

As an Atlanta, Georgia, Dispute Attorney for Will Disputes; Atlanta, Georgia, Lawsuit Litigation Lawyer for Will Validity; ATL, GA Will Contest Attorney; and, Atlanta, North Georgia Will Challenge Lawyer -- many people are often confused how THE ADAMS LAW FIRM uses undue influence as a defense to issues related to Heir and Beneficiary Will Contests, Probate Disputes, Estate Challenges, and ATL, GA, Probate Litigation.

AFTER THE TESTATOR HAS PASSED AND THE ESTATE IS BEING PROBATED

One of the cases commonly referred to and used as a defense to undue influence is Haynes v. First National State Bank of New Jersey case in 1981. The New Jersey Supreme Court established that the burden of proof lies on the proponent, especially when there are suspicious circumstances surrounding the will. It is also extended to transfers of property between donors and beneficiaries. The donee must bear the burden of proof and establish that the transfer of property was a gift and not the result of undue influence. This is altogether not so problematic when other heirs and beneficiaries received gifts, estate taxes mandated gifts of property and other wealth to use the Testator’s Unified Credit, and more. Therefore, it is common that related parties make gifts to their “flesh and blood” rather than have this money go to the Georgia Department of Revenue or the United States Treasury (the IRS).

Another landmark case is Pascale v Pascale in 1988. The New Jersey Supreme Court stated that the donee must establish for the court that the donor had an unbiased and competent counsel prior to the drafting of a Georgia Will or Power of Attorney. It is also helpful if these documents remain relatively similar in disposition of assets and powers given to the Power of Attorney In Fact. This is especially true if the donor is found to be mental or physically weakened. However, if the instructions and dispositions in these documents remain relatively the same, then a “best practices management” argument would be as follows:

• Argue to the Jury that whether it was a time the Testator was knowingly competent and understanding the consequences of all his or her acts, to the time when lack of capacity of undue influence might have set in, that even after the onset of some disease making a person susceptible to Undue Influence, the Testator’s wishes and desires remained the same.

• You may also argue that any confidential relationship can create a presumption of undue influence that the donee must then prove to be otherwise. A donee with superior knowledge of financial matters, fiduciary relations, or one who is directly responsible for the physical care of the donor can be considered to have an extraordinary relationship that could create undue influence. However, you will then go on to say someone has to take care of the loved one, and why should it not be another loved one rather than a hired paid caregiver who possibly doesn’t care about the disposition of the Georgia Testator’s Estate.

• To the contrary, Consider King v Brown in 2006. The jury found the will to be invalid due to undue influence and lack of testamentary capacity. In 2002, the decedent divided his estate between his 6 children in a will. Shortly thereafter, two of the decedent's daughters (King and Brown) were named his guardians and they began to quarrel over the estate and money. When his house was destroyed, the decedent moved in with his daughter King and shortly thereafter wrote a new will disinheriting Brown and leaving his estate to his daughter King. The jury decided that this was a result of undue influence because the father had become so dependent on his daughter for care and influenced by King decided to disinherit his daughter. This is obviously the scenario you to avoid in your case and defense.


A PROCEDURE TO FOLLOW BEFORE THE TESTATOR SIGNS THE WILL, AND A WILL CONTEST IS ON THE HORIZON.

The types of joint account disputes involving family members can be avoided by asking an experienced and qualified Georgia Estate Planning and Probate Attorneys in Atlanta, Georgia to set up a Georgia Will that clearly defines the Testator’s desired intentions. Keep in mind that while probate proceedings resolve issues on these difficult and emotionally charged cases, your heirs are the ones who will live not only with the outcome, but also with the consequences caused by any drama that plays out during the proceedings. With the proper planning, you can eliminate this turmoil and create a positive experience for your loved ones. Moreover, documentation of the Testator’s ailment is necessary as is making sure that capacity is shown at the time of the making of the will as well as having a recent visit from a doctor are always helpful ways to document the intentions of the Testator.

In fact, it may be prudent to video tape the proceedings, take extra steps to make sure the Testator is of sound mind, ask a lot of difficult questions to demonstrate the Testator’s capacity, and also possibly record the Georgia Will execution. What is more, have the proper unbiased witnesses there who do not know the Testator and do not in any way shape or form have an interest in any Georgia will contest proceeding. This also might be time to add an extra witness to your Will and not use your own paralegal as a witness or witness the Georgia Will itself. The fact is, acting as if this situation does not exist is the absolute wrong thing to do. You may also want to do the following:

• Record the proceeding


• Have extra witnesses unrelated at the will signing

Ask extra questions to determine the Testator’s capacity
• Put an “In Terrom” or “No Contest” clause in the Will
• Acknowledge the left out parties and state why as opposed to just oddly leaving them out altogether looking as if the Testator forgot these would be heirs of beneficiaries did not exist
• Remember, when one makes a will must know and do as follows: 1) know the contents of the Will Document; 2) Know the Nature of his or her bounty; 3) Know and Understand the Nature and extent of his or her assets for disposition.
• The capacity to make a will is less than the capacity to make a contract, and only a lucid moment in time by the Testator necessary
• Use Common sense!

The Adams Law Offices Atlanta, Georgia Will Contest Defense Lawyers know how to use the one party’s acts or omission against them. Remember, we are often on the other side of the Georgia County Will Contest Case. The Adams Firm Atlanta Estate Litigation Lawyers know what to look for, bring to the attention of the jury, and downplay.

Contact Our Atlanta Will Contest Law Firm through our Confidential Web Site Form. Should you need guidance in setting up your estate, or for any matters related to making sure your will remains an uncontested document, The Last Will and Testament Lawyers at “ADAMS LAW” are glad to be of service.

We welcome the opportunity to be of service to you. Please feel free to call our Firm at (404) 467-8611 or toll free at 1-877-412-3267, to discuss your options. You can also send us a message through our confidential Web Site form. The Adams Law Offices is conveniently located in the Buckhead section of Atlanta, Georgia near the intersection of Piedmont and Peachtree Roads near the Buckhead Loop.