Phinney Estate Law
Follow Us or Like Us
  • Home
  • About Us
    • Profile of Jamie Clausen
    • Profile of Michael Ballnik
    • Holistic Approach
  • Practice Areas
    • Estate Planning & Disability Planning
    • Probate & Trust Administration
    • Guardianship & Elder Law
    • Mediation & Conflict Coaching
  • Blog
  • Fee Schedule
  • Free Classes
  • Client Reviews
  • Contact Us

New Case Law: re Estate of Haviland

7/14/2011

58 Comments

 
Picture
On July 11, 2011, Division One of The Washington State Court of Appeals issued a new published opinion about Will Contests Based on "undue influence."  Because will contests are disfavored in Washington and relatively rare, published appellate decisions are likewise rare and always useful in understanding how courts view these decisions. 

Re Estate of Haviland -- Wash.App --, 2011 Wash.App Lexis 1564 (2011) dealt with a will executed by a prominent man later in life that left most of his property to his wife. In most cases that would appear to be a strange scenario for a will contest.  However, in this case this was a second marriage and the testator had gone to great lengths with his first wife to set up an estate plan that primarily benefitted their children and grandchildren for life and then charities to which they were long time donors.  When Mr. Haviland first remarried he made a modification to his estate plan that left a substantial gift to his new wife.  That change was not contested.  However, over the next 10 years more than $3 million dollars of his estate was transferred to his wife's separate property or her children from a former relationship while his health declined into what was eventually diagnosed as advanced dementia.  The last change to his will occurred when his wife contacted his attorney and provided him with Mr. Haviland's former will with changes in her handwriting that increased substantially the gift to her, left nothing to his children or grandchildren, and reduced the amount going to charity.  The attorney made the changes and had Mr. Haviland execute it at his office after just a short meeting in which Mr. Haviland answered only "yes" or "no" questions. 

The trial court found that the challengers of the will had met the burden of proving undue influence that "controlled the volition of the testator, interfered with his free will, and prevented an exercise of his judgement and choice." The court affirmed that the burden of proof for such cases is "clear, cogent, and convincing" but found that in this case the challengers had met that burden by raising a rebuttable presumption by establishing the factors laid out in Dean v. Jordon 194 Wn. 661 (1938).  Specifically, the trial court found that the three mandatory factors had been met - (1) the beneficiary was a fiduciary of the testator (2) the beneficiary participated in the procurement of the will and (3) the distribution of the will was unnatural based on past estate planning.  It also found that a needed fourth element was present.  In this case that was met by the testator's poor health, his dependence on his wife as his sole caregiver, and her self-serving transfers of his assets which the court found to be exploitative.  The court further found that once this presumption was raise, the wife did not produce evidence to balance the scales or overcome the presumption.

On appeal, the wife argued that the Dean test should not apply to married couples because they are so frequently each others fiduciaries and participate in the procurement of each others wills.  The court disagreed finding that while it was true that was frequently the case the Dean test requires all three mandatory factors and at least one additional factor making the frequently of any one factor in isolation irrelevant. 

The facts of this case are not pleasant but they are in many ways no more shocking than the facts in Estate of Kessler, 95 Wn.App 358 (1999) where the court held the will to be valid.   Estate of Kessler has been cited in almost every published case regarding will contests in Washington since its own publication but was not cited or distinguished in this case.  There are some factors that would appear to distinguish the cases.  First, the beneficiary in Haviland clearly more fully participated in the procurement of the will.  While the beneficiary in Kessler found the attorney and set up the appointment, the testator in Kessler ultimately met alone with the attorney and had some substantive conversations about her wishes. Second, there was no an established history of financial exploitation outside the estate plan in Kessler and that was clearly a significant factor in Haviland even though it is the first time a Washington Court has identified financial exploitation as a Dean factor. 

I think it worth noting that many of the cases were wills have been found to have been the product of undue influence have been ones where there was a romantic relationship between the Testator and Beneficiary, a large difference in their ages, the relationship began late in life, and the Testator had a large estate.  See Estate of Lint, 135 Wn.2d 535 (1998).  We would speculate that if Mr. Haviland's wife had been 5 years younger rather than 50 years younger and if the total amount of the estate that had been transferred or would go to the wife was $350,000 rather than more than $3.5 million the court might have seen less exploitation and undue influence and more of an attempt of a spouse to provide for the care of a wife who had cared for him in his final years. 

It is also interesting to note that the court in Haviland specifically found it was unnatural for Mr. Haviland to make the distribution in the will, even though it would have been more in keeping with an intestate distribution than his old will because of his history of giving to his children, grandchildren and charities during his life and in past estate plans.  Many family members who do not inherit under wills assume that this fact alone gives them the basis for a will contest.  The court here makes it clear that it might not even get them a single Dean factor in their favor if past estate planning and lifetime behavior make such a disinheritance "natural" for them.

Practical Lessons for Estate Planning:

I think it can provide some useful guidance to people wishing to spare their families a will contest fight and to leave money to someone they think their family or friends may object to:
    (1) Try to imagine your situation in the least flattering light possible.  You may think your beneficiary is beyond suspicion and reproach but you won't be there to give your perspective. Try to imagine how it might look from the outside and act accordingly.
    (2) Insulate your beneficiaries from your estate planning if necessary.  While it is common and even recommended that spouses plan together, if there is already family drama, a big age difference between spouses, and a lot of money at stake, independent counsel may be wise.  If you take that route, make the appointment yourself and don't have the beneficiary come with you.  Even if there is not drama, a small difference in ages, and only a moderate estate it may still be wise to make sure that you speak alone with your joint attorney and at some length so that they can later testify about your capacity, reasoning, and independence.
    (3) Write a letter in your own words and ideally your own handwriting that explains your decisions in terms that are honest but loving.  Either share it with your family now or put it with your will to be shared at your death.  I have found such letters let people feel much more at peace with your choices.  They feel that they can hear your voice and reasons and choose to honor you by honoring them. 

Practical Lessons for Probate Litigation:

Will contests are unpredictable, expensive, and destructive to families.  They also require challenging party to paint the testator as weak and manipulated in a public fashion.  Mr. Haviland had built a legacy of medical research, community leadership, and philanthropy.  I strongly doubt that he would be happy to know that 50 years from now he will be most likely remembered as the victim of undue influence in a published decision that painted him as the frail dope of a gold digger.  If his will did really represent his wishes, it is a shame that he didn't take some of the steps above.  If it did not, an untarnished legacy is yet another thing his wife stole from him.  In any event, it would have been wonderful if these parties, as much as they may have disliked each other by the end, could have found a way to settle this matter privately through mediation or collaborative law.  It might not have worked but, if it had, when we "googled" James W. Haviland we would have gotten a very different result and the money spent on the legal fees to take this all the way to the court of appeals could have been used from some of the medical causes he dedicated his life to support.

If you would like to consult with a Phinney Estate Law attorney to help you plan your estate with an eye to preventing conflict or to resolve a conflict with an estate, contact us at (206) 459-1908 or at info@phinneyestatelaw.com. 

58 Comments
OFAC link
9/19/2012 04:47:52 pm

The information you shared through your post is functional. I admire your work. Wish you all the luck for all your blogging efforts.

Reply
motor accidents compensation link
9/26/2012 09:59:07 pm

These tips and advices are really very much effective. Keep it up with sharing such useful information with us. Thanks for the post.

Reply
sole e25 reviews link
9/28/2013 03:38:30 am

great reply

Enlace Ici link
12/31/2013 08:17:27 pm

I couldn't agree more..

lire la suite link
1/3/2014 09:48:22 pm

That is true.. these tips are very helpful indeed

wills attorney link
10/2/2012 11:39:10 pm

Even though the title of your blog is very short but still it is catchy enough to manages the attraction at first sight and conveying the gist of the whole matter.

Reply
human papilloma virus treatment link
2/4/2013 01:44:45 pm

The case looks strange to me somehow. If the husband doesn't believe his wife then why did he made a will on her name?

Reply
read more here link
6/23/2013 04:31:58 pm

When we study the case, , re Estate of Haviland, disqualification of abuser is not retroactive. The court explained it that the triggering incident is the abuser’s attempt to receive property and that vested rights are not impaired because the abuser’s rights to the decedents probate property vest only when probate is complete.

Reply
Grow Your Business link
7/11/2013 10:13:15 pm

You must know by now, your article goes to the nitty-gritty of the subject. Your clarity leaves me wanting to know more. Just so you know, i will immediately grab your feed to keep up to date with your online blog. Sounding Out thanks is simply my little way of saying great job for a remarkable resource. Accept my nicest wishes for your next post.

Reply
Drug Attorney Reno link
7/19/2013 04:40:46 pm

Its not at all strange case. Now a days many people are facing same problem. So its necessary go review the law and things related to it.

Reply
buying facebook fan link
9/2/2013 12:04:53 pm

When everything started at the court, everyone should be ready for what it takes to the results of the case. Proof or evidence should be strong in order to win the case. There are many things to consider so it's better to look back about the law.

Reply
DUI Lawyer Lake Tahoe link
10/10/2013 08:34:54 pm

Can you please tell the reason why the distribution of the will was considered Illegal? As legally the owner of the will can make changes and distribute it as per his/her will.

Reply
Carsoncity-drug-attorney.com link
10/20/2013 10:10:14 pm

Can you Please give me your valuable suggestion regarding how to hire an estate attorney and What are the things to be consider for that.

Reply
consumer-profile.co.uk link
11/9/2013 04:51:29 pm

I really loved reading your blog. It was very well authored and easy to understand. Unlike additional I have read which are really not tht good.

Reply
naturalway2health.com link
11/17/2013 06:56:16 pm

This was an excellent post. It has some valuable info on this topic. Thank you for compiling it into an easy to read and well written post.

Reply
rushpcb sanjose link
11/18/2013 05:23:02 am

I really enjoyed the quality information you offer to your visitors for this blog.
I will bookmark your blog and have my friends check up here often.

Reply
essay writing services review link
11/19/2013 09:30:41 pm

You must read essay writing services review before selecting a writer for you as their are many scammers who are decieving the people so reading review will help you minimize this risk.

Reply
Sean link
1/23/2014 06:47:58 am

I finally decided to post a thought, and let me tell you this is another very strong post. Thanks so much with this fantastic new web site.

Reply
beach city attorney link
1/24/2014 01:52:58 pm

Very nice posts, I revealed your websites on search engine and scan one or two of the other one posts. I recently added want you to my Search engine News Person who reads. Keep up the great mathematical function Await reading wonderful from you someday.

Reply
international stem education link
1/24/2014 01:53:24 pm

Very quickly this web site will be famous among all blogging and site-building viewers, due to it's nice content.

Reply
hewitt research and consulting link
1/24/2014 01:53:44 pm

You are so interesting! I do not suppose I've truly read anything like that before. So nice to find someone with some original thoughts on this issue. Seriously.. thanks for starting this up. This web site is one thing that is required on the web, someone with a bit of originality!

Reply
globaljustice link
1/24/2014 01:54:03 pm

You have touched some good points here. Any way keep up writing.| I really like what you guys tend to be up too. This kind of clever work and exposure! Keep up the very good works guys I've incorporated you guys to blogroll.| Hi! Someone in my Myspace group shared this site with us so I came to check it out.

Reply
mc-comm link
1/29/2014 04:25:16 pm

It was a awe-inspiring post and it has a significant meaning and thanks for sharing the information. Would love to read your next post too. Thanks

Reply
how to make apple passbook? link
2/11/2014 03:39:54 pm

That you are so useful! I do not necessarily imagine We have truly study whatever like that ahead of. Thus good to find a person having several initial ideas on this trouble. Critically.. thank you intended for starting up this specific upward. This specific site will be something that is required online, a person having a little bit of inspiration!
Thanks :)

Reply
uegva link
2/25/2014 03:33:22 pm

I wanted to leave a little comment to support you and wish you a good continuation

Reply
healthy relationships now link
3/9/2014 08:32:33 pm

Really.. thanks for beginning this up. This computing machine are a few things that is required on the web, somebody with a bit originality!

Reply
lgbs health link
3/9/2014 08:33:23 pm

These are literally wondrous concepts in regarding blogging. you've got touched some nice points here. Any method continue writing.

Reply
wisconsin health connection link
3/9/2014 08:33:58 pm

Very quickly this site are notable among all blogging and site-building viewers, thanks to it's nice content.

Reply
health source james island link
3/9/2014 08:34:27 pm

Hey! Would you mind if I share your web log with my twitter group? there is a heap of parents that i feel would extremely appreciate your content. Please let Maine recognize. Thank you!

Reply
fausahealth.net link
3/9/2014 08:35:08 pm

It will perpetually be exciting to browse content from alternative authors and follow one thing from alternative websites.

Reply
healthyfutureschesco.net link
3/9/2014 08:35:39 pm

I have extremely enjoyed browsing your diary posts. in any case i will be subscribing to your feed and that i hope you write once more soon!

Reply
ehealthattorney.com link
3/9/2014 08:36:10 pm

I'm extraordinarily impressed along with your writing abilities as well like the layout on your diary. is that this a paid theme or did you modify it yourself?

Reply
www.mysarasotaduilawyer.com link
3/9/2014 08:53:05 pm

I will make a point to bookmark your site and will in the long run return some time or another. I need to sway you to unquestionably proceed your extraordinary posts, have a decent occasion weekend!

Reply
www.bighistoryuniversity.org link
3/9/2014 08:53:37 pm

Hello to all, how is all that, I think each one is getting more from this site, and your perspectives are pleasant in backing of new clients.

Reply
www.lancedublinconsulting.com link
3/9/2014 08:54:05 pm

It's straightforward, yet compelling. A ton of times its troublesome to get that "impeccable equalization" between convenience and manifestation. I must say you have made an extraordinary showing with this.

Reply
www.mylouisianahealthexchange.com link
3/9/2014 08:54:38 pm

Truly.. much thanks to you for beginning this up. This site is something that is required on the web, somebody with a little inventiveness!

Reply
www.myhealthexchangeagent.com link
3/9/2014 08:55:07 pm

These are really brilliant plans in concerning blogging. You have touched some pleasant focuses here. Any path keep up composing.

Reply
www.healthexchangeofla.com link
3/9/2014 08:55:34 pm

Thank you, I appreciate it! Everyone loves it when individuals come together and share views.

Reply
www.medicalinsuranceplansflorida.com link
3/9/2014 08:56:01 pm

Great website, continue with the good work!

Reply
businessprofile link
5/6/2014 05:11:08 pm

I'm definitely loving the information. I'm bookmarking and will be tweeting this to my followers! Outstanding blog and wonderful design.| I like what you guys tend to be up too. Such clever work and exposure!

Reply
futurepress link
5/6/2014 05:20:45 pm

Also, the blog loads super fast for me on Safari. Exceptional Blog!| These are in fact fantastic ideas in regarding blogging.

Reply
belfordlawsuit link
5/6/2014 06:13:22 pm

You have touched some good points here. Any way keep up writing.| I really like what you guys tend to be up too. This kind of clever work and exposure! Keep up the very good works guys I've incorporated you guys to blogroll.| Hi! Someone in my Myspace group shared this site with us so I came to check it out.

Reply
workfromhometeam.biz link
5/6/2014 06:14:06 pm

I've read this post and if I could I wish to suggest you some interesting things or tips. Perhaps you could write next articles referring to this article.

Reply
ukpoolstore link
5/6/2014 06:14:42 pm

Appreciating the persistence you put into your blog and inn depth information you provide. It's nice to come across a blog every once in a while that isn't the same unwanted rehashed information.

Reply
travel save pro link
5/6/2014 06:15:20 pm

Good day very nice web site!! Man .. Beautiful .. Amazing .. I'll bookmark your web site and take the feeds additionally? I am glad to find so many helpful information right here in the post, we want work out extra techniques in this regard, thank you for sharing.

Reply
south central ohio home inspector link
5/6/2014 06:16:09 pm

These are actually wonderful ideas in concerning blogging. You have touched some nice points here. Any way keep up writing.

Reply
sober living las vegas link
5/6/2014 06:17:33 pm

You're so awesome! I do not think I've truly read through a single thing like that before. So nice to find somebody with original thoughts on this topic.

Reply
rl home services link
5/6/2014 06:18:19 pm

I will make sure to bookmark your blog and will eventually come back someday. I want to encourage you to definitely continue your great posts, have a nice holiday weekend!

Reply
ohio home inspector link
5/6/2014 06:18:53 pm

Thanks for your personal marvelous posting! I definitely enjoyed reading it, you can be a great author.

Reply
nv horse power travel link
5/6/2014 06:19:49 pm

Keep up the wonderful works guys I've incorporated you guys to our blogroll.| Hello would you mind stating which blog platform you're working with?

Reply
meds store link
5/6/2014 06:20:36 pm

Very nice post. I just stumbled upon your blog and wished to say that I have really enjoyed browsing your blog posts. After all I'll be subscribing to your feed and I hope you write again soon!

Reply
maui homes link
5/6/2014 06:21:03 pm

My family all the time say that I am wasting my time here at net, but I know I am getting know-how all the time by reading such nice posts.

Reply
living the green link
5/6/2014 06:21:52 pm

I will make a point to bookmark your site and will in the long run return some time or another. I need to sway you to unquestionably proceed your extraordinary posts, have a decent occasion weekend!

Reply
kidz toyz store link
5/6/2014 06:29:46 pm

Very quickly this web site will be famous among all blogging and site-building viewers, due to it's nice content.

Reply
intheirpath link
5/14/2014 05:11:53 pm

En conséquence le cadran marque à farah montre également leurs propres reflète son excellence. Pour cette raison, à Ha?ti, au libéria abondant farah a proposa de style extrêmement meilleurs procédés horlogerie et la créativité.

Reply
Best Water Purifier in India link
8/22/2017 11:00:46 pm

I would like to share more information about Best Water Purifier in India..

Reply
Orange County Family Law Attorneys link
5/25/2022 08:26:20 am

There are some factors that would appear to distinguish the cases. Thank you, amazing post!

Reply
Orange County Divorce Attorneys link
5/25/2022 10:20:47 am

Many family members who do not inherit under wills assume that this fact alone gives them the basis for a will contest. Thank you, amazing post!

Reply



Leave a Reply.

    PEL Blog

    This Blog is written by Seattle Attorneys Jamie Clausen & Michael Ballnik.
    It is made available for educational purposes only. Its purpose is to give you general information and a general understanding of the law, not to provide specific legal advice. Reading this blog does not create an attorney client relationship between you and Phinney Estate Law. Because each individual and family is unique, the Blog should not be used as a substitute for legal advice from a licensed professional attorney in your state.

    Archives

    April 2020
    January 2020
    April 2018
    December 2017
    October 2017
    March 2016
    November 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    December 2014
    October 2014
    September 2014
    August 2014
    March 2014
    January 2014
    June 2013
    May 2013
    April 2013
    January 2013
    December 2012
    November 2012
    October 2012
    September 2012
    August 2012
    July 2012
    June 2012
    May 2012
    April 2012
    March 2012
    January 2012
    October 2011
    September 2011
    August 2011
    July 2011

    Categories

    All
    Abatement
    Admemption
    Administrator
    Advance Health Care Directive
    Collaborative Law
    Community
    Community Classes
    Debt
    Disability Planning
    Discounts
    Downsizing
    End Of Life Planning
    Estate Planning
    Events
    Guardianship
    Health Care Agent
    Health Care Planning
    Holistic Law
    Immigration
    Informed Consent
    Intestate Administration
    Last Will And Testament
    Legacy
    Legacy Planning
    Legacy Statement
    Lgbt
    Living Will
    Mediation
    Organ Donation
    PEPS
    Posthumous Heirs
    Power Of Attorney
    Probate
    Probate Litigation
    Quasi-community Property
    Science Alerts
    Slayer Rule
    Social Security
    Tax
    Trust Administration
    Undue Influence
    Unmarried Partners
    Will Contest
    Word Of The Week

    RSS Feed