Join Adam Fried, co-chair of Reminger’s Estate, Trust, and Probate Litigation practice group, for a five-part blog series exploring what makes for a good case or bad case to challenge inheritance rights.
In part one, we reviewed the elements of undue influence and discussed character and credibility of the potential challenger. Now, we will look at the problems with proof in establishing or defending against an undue influence claim.
Part Two – The Problems with Proof
Proving bad conduct, sufficient to overturn a will, is not always easy. Most often, the conversations leading to the reason for disinheritance are held in private. Further complicating a case, the person who was the subject of the exploitation is usually deceased or so far gone mentally, that establishing the bad conduct requires very skilled advocacy. Even more difficult to establish a claim, particularly in a will or trust contest, a lawyer or other professional is usually available to testify that the donative instrument (will or trust or beneficiary designation) was the product of the parent’s own free will and volition. When one considers these factors: lack of direct evidence, and a disinterested attorney supporting the transaction, it is easy to see how the wrongfully disinherited can feel hopeless and abandon an investigation or claim.
Rest assured: the case law is replete with examples of juries and judges that have found the donative instrument invalid regardless of the testimony of a “disinterested” attorney, or “disinterested” banker, or the professions of innocence by the child, caregiver, maid, or neighbor who benefitted from the conduct. The practical reasons why wills, trusts, gifts, or beneficiary designations get set aside is that a jury can, if shown the best circumstantial evidence in the context of the human who signed the will and in the context of the child who was disinherited, intuit when the transaction was bad or unnatural.
Other types of evidence that can be persuasive include: the drafting attorney’s notes, calendar, appointment log, drafts of the document, prior instruments and connection between the drafting attorney and the suspected bad actor. Phone records, social media posts, visitation logs at a hospital or nursing home, and home surveillance footage can also be telling. Things as simple as the personal knowledge of the testator’s close friend, the testimony of a personal banker, and the conduct of the decedent leading up to and around the challenged change can also be very persuasive to the minds of a judge or jury. More evidence is almost always better than less evidence.
In part three of this series, we will discuss red flags that can help or hinder an inheritance lawsuit.
- World Elder Abuse Awareness Day
- Ohio Probate Law Journal Article May/June 2021
- E-Book: Should I Challenge My Inheritance?
- New Probate Legislation Expands Guardian Powers, Clarifies Spousal Rights
- Doing our Part to Support Elder Justice
- Fairness and Fees in Inheritance Disputes
- Say What You Mean: Don’t Bet the Farm on Imprecise Language
- Should I Challenge My Inheritance? Part Five: What to Consider When Selecting Counsel
- Ohio Courts to Estate Creditors: We REALLY Mean Six Months!
- Should I Challenge My Inheritance? Part Four: Economic Considerations of Inheritance Dispute