22 Dic Undue influence in wills in the us
https://rcc.harvard.edu/event/undue-influence-wills-us
https://taranconnotaria.es/899-2/
(Charla del 5-12-2017 en el Real Colegio Complutense de Harvard)
UNDUE INFLUENCE IN WILLS IN THE US
WHAT´S UI?:
UI upon a will (it can also exists in contracts, inter vivos gifts, trusts, etc) occurs when someone (usually the beneficiary but it can be a third person as well) exerts such a pressure upon the testator that his will, as expressed, doesn´t reflect the testator´s real wish but that influencer´s wish instead; the testator would not have signed such a will but for the influence.
UI in a wide sense, exists also in case of duress and fraud, yet, strictly understood UI differs from the duress (violence and intimidation) in that the testator is not afraid of the culprit, and differs from the fraud (trickery, ruse) because there´s no error in the testator´s mind caused by the influencer.
UI strictly understood constitutes what in Louisiana is called captation or suggestion, and in Spain dolus: the testator becomes a captive puppet (marionette) of the influencer, subdued by the wrongdoer, who is a schemer that usually takes care of the testator, meddles and interferes in his businesses, obtains sometimes a power of attorney in order to manage his affairs, plots to absorb all of his affection and to deviate it from the testator´s relatives, friends and faithful maids, and campaigns so that the testator breaks up his relationship with these close ones, or creates a distance between them, avoiding communication, intercepting the correspondence and in general using all kinds of malicious and foul means, other than fraud.
Yet mere pleading with the testator or badgering (bothering persistently) the testator to make a will in a certain way is not enough (Professor Gerry W. Beyer says).
Caretaking of the testator and showing him affection (dolus bonus) is not UI either, especially when given by family members.
UI is a vice of the testator´s consent that taints and annuls the testament if a judge or jury finds it in the case, yet I think that the principle of favor testamenti demands that the nullity, if possible, ought to be just partial and not of the whole testament. For example, if the priest that confesses the testator during the testator´s last illness obtains a devise in the testament following the confession, only this very devise should be voidable, not contaminating the rest of the devises if that is possible.
If not, then the whole testament is void, or to be more precise, is voidable, that is, attackable in courts by those with standing, and once the last will´s been voided, the succession is governed by the previous testament or, if there´s none, by the intestate, benefiting the contestants. Only is they are benefited, they have standing to challenge.
IS UI IMPORTANT NOWADAYS IN SPAIN?
Not really.
In Spain I am used to see wills being contested because of incapacity; even notarized testaments –and 99,9 percent of the Spanish testaments are notarized and open- are challenged on such grounds, despite the robust presumption that the testator acted with a sane and sound mind when he executed his testament, for the notary has examined him and judged positively the existence of testamentary capacity. However, in Spain we are not so accustomed to undue influence as the reason for questioning the validity of the will. Very, very few testaments are challenged in Spanish courts because of such a reason.
In the last decades there´s only been one case (ruling of 25th novembre 2014) in which the Spanish Supreme Court has struck down a testament on the sole grounds of UI, and it was an open notarial testament and the UI was allegedly exerted by the testators´daughter, against the testators´son, whereas there are dozens of rulings voiding last will because of lack of testamentary capacity.
There seems to be a trend, pointed out by Spanish Professor Beatriz Verdera, toward disregarding dolus as a vice of the testament. Since 1889, the Spanish Civil Code, and since 1942 the Italian one, contemplate dolus as a vice, but since 1991 Catalonian Code and since 2011 Aragón Code just consider fraud and not captation as a vice. I too consider this omission of the UI inn these latter Codes deliberate by the new legislatures and a sign of the small consideration given nowadays to this particular problem in Spain: as if no UI except fraud should ever invalidate a testament, no matter how severely it may have contaminated the testator´s will. Nonetheless I wonder on which grounds a Spanish judge can invalidate a will that doesn´t reflect at all the testator´s mind because of UI different from fraud when Aragón and Catalonia´s laws are applicable. Apparently there´s no prohibition such as ancient article 1492 of the Louisiana Civil Code, but the principle «inclusio unius, exclusion alterius» may ban it.
Anyway, in Spain, Courts may use presumptions in order to find UI, but there used to be no iuris presumptions, that is, presumptions established by the law itself. The spanish Judge can make homini presumptions of this vice, based on signs, indications or clues proven by the contestants that reasonably lead to infer the UI. Usually there´s only circumstantial and extrinsic evidence of the foul arts exerted by the influencer; normally, there´s no direct evidence of the UI, and when the evidence has to be produced, the testator is already dead. But things are changing in the Spanish jurisprudence: for the last three centuries, our laws have prohibited that the priest who had confessed the testator during the testator´s last illness receives a devise in the testament following the confession. The rationale of this article 752 of the Civil Code aims to protect the freedom of testation, avoiding every temptation of captation by the priest. So such a devise would always be void, even if the priest could prove that no UI was involved. Nonetheless, the Spanish Supreme Court has recently (rulings of 19th of may 2015 and 8th april 2016) construed the norm otherwise: this provision is no longer a ban, but a presumption of UI, and a rebuttable one. So I guess that the Spanish law already has a de iure presumption of UI in such a case. And this new doctrine may as well be extended to the other two prohibitions that share the same rationale: the ones of articles 753 and 754 Civil Code, related to the guardian and the ward, and the notary and his client.
IS UI RELEVANT IN THE US?.
In US, we find a large number of cases voiding wills on the grounds of UI. Even literature shows that UI is a big deal in this country:
John Grisham, famous for his bestselling legal thrillers, has written two novels on last wills: the first one in 1999 titled «the testament», and the second in 2013 «Sycamore Row«, this one far more interesting than the former from the law point of view. In this second novel the testator is an old white man, a wealthy business man, who suffers from a terminal cancer, so painful that commits suicide, two hours after having executed (written) his last testament, devising most of the estate to a middle aged black woman who has been working for him as a maid for the last four years and as a caretaker. She doesn´t even know of this last testament that benefits her; and nobody not even the maid can imagine the reasons why she´s been granted the estate. The testament is holographic, written and signed entirely by the testator, without witnesses, without lawyers, without notaries. And it revokes a previous will drafted by lawyers and witnessed by the lawyers´employees, in which all the estate was devised to the testator´s adult children and great children. Suspicious, right?. These descendants, upset about its contents, challenge the last will in court, in the probate procedures, alleging obviously lack of testamentary capacity, which seems to make sense since most suicidals suffer from some kind of mental disease, especially depression. What´s not so evident and what drew my attention in the novel was that the will contest was based not only on the grounds of incapacity but also and primarily on the grounds of UI. The maid had performed, as I said, as a nurse, looking after the testator closely, washing him, etc.; so she could have easily pressured him during his illness at home in order to incline his will toward her. People even suspect the existence of sexual intercourse between the maid and the testator. And, as I said, the testament was written with no witnesses. Other than for UI, the last testament doesn´t make any sense: it´s truly unnatural.
Here in US there´s this doctrine of the undue influence, which comes from the common law, and is held by some Statutes and Codes, that raises the presumption that when the beneficiary of a devise is in a confidential or fiduciary relationship with the testator and the beneficiary is not the testator´s spouse or relative, the will has been obtained through undue influence.
If the beneficiary has been active in procuring the preparation or execution of the will, the presumption becomes stronger.
Not always the influencer coincides with the beneficiary who is somehow related to the influencer as spouse, partner, relative, etc: in these cases, the presumption works if the fiduciary relationship is between the testator and the influencer, who are not kin to each other.
The confidential or fiduciary relationship can be de iure or de facto, and exists between a lawyer and his client, a trustee and the beneficiary, a guardian and his ward, a doctor or nurse and his patient, a pastor and his parishioner, between neighbors, etc.
But, the fact that the testament uses a technical language that the testator, a layman in terms of law, could not have used, doesn´t arouse a presumption of UI.
These presumptions are anyway rebuttable, that is, work unless there´s a reasonable and fair explanation of the motives that led to such a devise. In the novel, it doesn´t make any sense that the maid receives 90% of the estate, so at the beginning of the process the jury is favorable of finding UI exerted by her upon the testator. But 5% of the estate is devised in the same testament to the testator´s brother, and the holographic says that as children, both (the testator and his brother) witnessed something no human should ever see and the brother was forever traumatized. Here lies the mystery of the book, until at the very end, the lawyer representing the estate, finds out a terrible crime that fully justifies the device granted to the maid, which I won´t reveal so that the novel doesn´t get spoiled. As soon as the jury learns about the tragedy, unknown even to the beneficiary, the presumption of UI gets rebutted: the testament now makes perfect sense. And so, the jury upholds the last testament.
PROCEDURES TO ALLEGE UI
In Spain, will contests of any kind (also challenges on the grounds of UI) are tried in an ordinary process started by a regular lawsuit, and it´s a Judge who decides them, whether there´s been UI or not, and in Catalonia there are 4 years, and in the rest of Spain 5 to file the suit.
Whereas, the process for the will contest is usually the probate process. Probate is a judicial process necessary to validate every testament in the US, not only oral testaments or holographic ones, but also written testaments executed before witnesses or a notary. A court has to determine if it complied with the statutory requirements, and lawyers are involved in this probate process, which means usually high expenses for the heirs. No wonder most small estates go intestate, and no wonder that in all kinds of estates (sizable or tiny) there are many ways of non probate transfers, such as insurance policies, joint tenancies and living (revocable) trusts.
Relatives and spouses are given notice of the probate and have several months (from 2 to 6, depending on the different states) to file the will contest, but always within the 3 years following the testator´s death. But, in many states (Mississipi is one of them and it´s where the action in the novel take place), it´s not a judge but a jury, who decides the will contest, discerning whether the will has been impaired or not by undue influence or lack of capacity, which is weird from a spanish perspective. Professor William Mcgovern claims that juries may be more prone than judges to reject wills that they find «unnatural«.
By the way, trusts can be challenged like wills (on the same grounds, such as incapacity and UI), but only judges (because equitable law is applied to trusts, a jury-free realm) decide these contests, thus trusts are more resistant to challenges than wills.
WHY IS UI SUCH AN ISSUE IN THE US?.
The first hypothesis of my attempt to explain the very different importance of UI in the Spain and in the US and that in the US most of the testaments are not notarial, but executed in front of witnesses other than notaries, and these witnesses are mostly laymen in terms of law; there also exists the holographic form of testament, which has no witnesses at all. It seems that Louisiana is an exception and notarial testaments there are more common.
On top of that, in the US the few notarial testaments are what they called here «notarized» testaments, that is, they are not public but private deeds, not written by the notaries but for the testator, a friend or relative or a lawyer and presented to the notary, and:
1, american notaries are mostly (with the exception of Louisiana) laymen in terms of law, unlike the Spanish and most of the European notaries; in the US they do not even have to obtain a degree in law; all they do is certify that a certain signature is authentic; and
2, the notarization may consist only (according to the Uniform Probate Code) in certifying that he knows the testator´s signature, which means that the notary was not present when the will was signed. Again with the exception of the Louisiana Civil Code (art 1577): in the notarial testament, the testator shall declare that the instrument is (contains) his testament, in the presence of a notary and two witnesses.
REBUTTAL OF THE FIRST GUESS
UI is a matter of facts rather than law, and this is why American law relies in juries to find whether there´s been UI or not, letting the judge infer the legal consequences of such a fact. And notaries and witnesses even in Spain don´t always prevent UI from occurring, because the influence has been in most of the cases exerted in the years or months prior to the execution of the will, and the beneficiaries or the influencer may not be present at the execution act.
So being holographic the novel´s testament was not necessarily the reason for the presumption, and moreover, in Spain there are also holographic testaments and no one usually necessarily suspects UI out of them, and the doctrine of the UI has not been developed in our jurisprudence, as it´s been in the US.
Spanish notaries are concerned about possible influences, either due or undue influences. We certainly try to make sure that the dispositions of the testament really come from the testator and not from other persons, especially not from the ones who accompany him, and whenever there are signs that these persons may be dictating the will, the notary will ask them to remain silent, and if they by their mere presence in the room still may influence the testator, the notary will request them to exit the office, leaving the testator alone with the notary. And the notary will be even more cautious when the dispositions are not natural: that is when the testator´s children are not treated equally, or when strangers are preferred to relatives. Yet, to be honest, notaries not always achieve the prevention of UI from happening.
Hence, there had to be other reasons apart from the lack of notaries while the execution of the American testaments.
SECOND HYPOTHESIS:
So my second guesss was addressed to the lack of forced heirship (what we call «la legítima de los herederos forzosos«) in the American laws.
Some forms of forced heirship do exist in the US: but only for the spouse (widow or widower), who is entitled to an elective share, that is, she/he can choose between the devise left by the testator or a share of the estate, proportional to the length of the marriage. Yet, this right is granted only in separate property States (regimen de separación de bienes), for is community property States (regimen de comunidad, like the gananciales, such as California or Washington State), there´s no protection at death because the spouse already has half of such a community. And no protection at death whatsoever is given to the descendants (except in Louisiana, as we´ll see), let alone to the ascendants.
In most of the Spanish civil laws –all of them except Navarra and Ayala in Álava- the testator is not free to devise all of his estate to whoever he wishes, but must leave an important share to his closest relatives, that is his spouse, the descendants and in some Spanish laws even the ascendants.
So american laws through the doctrine of the UI would be compensating to the testator´s blood relatives and spouse, protecting them against the risk of disinheritance by the testator.
A doctrine meant officially to protect the free will of the testator in the context of a theoretically absolute freedom of testation would really apply, paradoxically, to reduce precisely this freedom in order to protect the relative´s expectation to inherit. And it would diminish his freedom even more than the forced heirship (la legítima) does in the spanish laws, because even brothers and other collateral relatives (called by the intestate norms) could use this doctrine to challenge the will.
Several american treatises on wills and estates that I read don´t give any clue to the origin and cause of the doctrine of the UI, but there´s this article, written in 1997, and yet a very valuable essay nowadays, by an interesting Professor at Boston College Law School, Ray D. Madoff, confirming my second hypothesis. The title speaks of its content, «unmasking undue influence«; she connects UI precisely with the lack of forced heirship in most of the American laws. The doctrine can deny freedom of testation for some individuals irrespective of the existence of substantial evidence that their will represents and reflects the true wishes of the testator, in order to allow the testator´s spouse or relatives to inherit, either by previous testament or by intestate. Madoff considers that there´s been a systematic misapplication of the doctrine of UI by Judge and juries, by imposing to testators the society´s norms on what is considered the appropriate testamentary behavior.
The author brings up the Kaufmann case, a famous case from the 1960s, in which Robert Kaufmann, homosexual, in his will left the majority of his estate to his companion another man Walter Weiss, disinheriting his brothers and nephews. The testator left a letter explaining the reasons to do so, to dispose of a substantial portion of his estate to a man who was not a member of his family: stating that this man changed his life making him able to accept himself as a person. The court dismisses the letter as unreal and exaggerated, and annulls the testament on the grounds of UI, bringing back to effect a previous testament disposing of the estate in favor of the testator´s brothers. Madoff suggests the existence of homophobia in the court´s mind. Yet times have changed and in 1996, in the Jack Knickerbrocker case, benefiting his lifemate, the will withstood and survived the attack from the relatives, and the court didn´t find any UI exerted on the testator.
Madoff reveals the unstated assumptions underlying the doctrine of UI, which spin around the following manicheistic dichotomy: family members, and non-family members; the family –which is cooperative and animated by ethic of altruism- and the marketplace –that is competitive and based on an individualistic ethic.
First assumption, people can depend on spouses and blood relatives to look out for theirs best interest because spouses and blood relatives act selflessly, and thus, people naturally want to leave the bulk of their property to spouses and blood relatives, regardless of the level of services provided by these members of the family; so, every disposition in favor of the family is deemed natural; there´s naturalness in the disposition.
Courts are reluctant to find a confidential relationship among blood relatives, and if there´s one, it is not suspicious.
There may be UI between relatives but contestants will have to prove it, without the aid of any presumption or inference; for example, an aged testator has two children, one rich and healthy, the other poor and disabled. He wants to give the bulk of his estate to the needy one. However, the rich one, in confidential relationship with the testator, exerts pressure until the parent executes a will benefiting both children equally.
Courts also are reluctant to find a suspicious confidential relationship among spouses, unless it´s a second marriage where children from the first marriage are disinherited.
The second assumption of the doctrine is related to non-family members, who can generally not be depended on, because they will act selfishly, so people only want to benefit non-family members based on a contract model, with bequests according to the value of the services provided by the non-family member. The non-family member who enters in a confidential relationship with the testator –whenever there´s dependence- ought to be considered a suspect: why is he -the former- all of the sudden doing this for the latter?, it must be certainly for the money.
This assumption is oblivious to the fact that there are sometimes friends, neighbors and non-married partners that become just like family to the testator, with ties sometimes as robust or even more robust than the family ties.
Madoff proves this correlation between the doctrine of the UI and the protection of spouses and relatives with two pieces of evidence.
EVIDENCE NUMBER ONE: the State of GEORGIA.
Georgia is the only separate property state that fails to provide any protection for a surviving spouse. Georgia allows the disinheritance of the spouse, and its Code provided once that in such a case, the will should be closely scrutinized and upon the slightest evidence of UI, probate should be refused. Such a provision has disappeared from the Georgia Code from 1998, and yet it may remain by inertia in the Georgian courts´ mindset. So freedom of testation is given with one hand while taking it back with the other.
EVIDENCE NUMBER TWO:
Whereas, Louisiana, due to its Spanish and French law tradition, is the only state in the country (US) that provides statutory protection for children (descendants) in the form of forced heirship (in the rest of the states, parents duty is to support the children while parents are alive but are free to disinherit them at death. And the Louisiana Civil Code (article 1492) provided also that for those attempting to annul inter vivos or testamentary transfers, no proof would be admitted that the disposition was made through suggestion, captation (hatred or anger).
But things changed in 1989, that protection at death in Louisiana was reduced to children under the age of twenty three or those unable to care for themselves due to mental incapacity or physical infirmity.
And in 1900 consequently, and not surprisingly, article 1492 was repealed, thus allowing will contest on the grounds of UI.
And in 1991 a new article (1483) was introduced providing that a person who challenges a donation or a testament because of UI must prove it by clear and convincing evidence, however if at the time the donation was made or the testament executed, a relationship of confidence existed between the donor and the wrongdoer and these two are not related by affinity, consanguinity or adoption, the challenger only needs to prove the UI by a preponderance of the evidence. So, UI´s not exactly presumed but the burden of proving it has become much lighter.
CRITICISM OF THE DOCTRINE
So the doctrine of the UI in the US proves to be wrong (and should not be applied) when its main goal in to protect the blood relatives (even brothers and other remote relatives, not only descendants and ascendants) and spouses expectations of inheritance.
Specially taking into account, says Madoff, that for the last decades education has become the main occasion for intergenerational wealth transfer. Rather than occurring at death through wills or intestate succession, such transfers typically occur during the lifetime of the older generation in the form of tuition of the young one. And it´s the marital union, rather the entire family, who participates in a partnership in the creation of the testator´s wealth.
Professor William Mcgovern believes, in this sense, that when a decedent leaves both surviving spouse and descendants, the entire estate should go intestate to the spouse, unless the spouse is not the other parent of those descendants (second marriage) or the spouse has children by previous marriage. Apart from these two exceptions, if the children are minor, the spouse will provide for them naturally, and no guardianship will be required; and if the children are adults, they are usually capable of providing for themselves, whereas the spouse is more likely to need the testator´s property. This is how intestate works in the Uniform Probate Code, and the reason why in the US laws (except the Louisiana one) there´s no forced heirship for descendants and ascendants: only the spouse gets protection both intestate and against the will, either by receiving half of the community property or by the elective share, as I said before.
In Spain we don´t have this problem: the doctrine of the UI has never been misused in order to protect the spouse or the descendants´expectations of inheritance. We don´t need such a misapplication, for the closest relatives are already protected by law through «la legítima». Not even in Navarra and Ayala (where none of the descendants is a forced heir), nor in Aragón or el País Vasco (where every descendant except one can be disinherited), spouses and relatives have been tempted to contest wills on the grounds of UI, nor judges usually invalidate and strike down wills on those grounds. And I foresee that even if the rest of Spain (where what we call Derecho Común exists) abolishes la legítima (as many commentators suggest), this doctrine will not start being misused, as happened in Louisiana.
But the doctrine of the UI in the US is altogether right (and it should still be applied) when its goal is to protect the freedom of testation, as it is used in Spain. The main merit of this doctrine lies in stressing the fact, as Madoff says, that dependencies do affect people´s decisions: the will ought to be rejected if it doesn´t reflect what the testator would have intended, had the testator not been dependent. He may have intended his will but his intent is not pure: he has devised everything to his neighbor willingly but by virtue of his dependence to his neighbor knowing that if he were not dependent, he would not do it. This point of view makes UI similar to duress: external forces make the testator do that which he otherwise would not do.
It´s a very useful perspective for a Spanish notary while assessing the real freedom of a testator: his state of dependence toward the beneficiary may restrict his liberty, so the will has to be warily scrutinized. Such dependence should not raise a presumption of UI, but ought to be a sign or circumstance of possible UI that prompts the notary to be more alert. And notaries should inquire into the real motives and causes of every devise and, once disclosed, express the explicitly them in the instrument, so that the testaments always make sense and get shielded against contests on the grounds of UI; for example, if there´s a device to a non-professional caretaker of the testator, for he is grateful to the devisee, the instrument should highlight that caretaking issue, which characterizes the disposition as remunerative.