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.
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.
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