B. Evidence on Elements of Undue Influence
III. Did Roberts Rebut the Presumption of Undue Influence by Clear and Convincing Evidence?
1.2.4. Fraud and Duress
Courts will invalid a provision of a testamentary trust that is obtained by fraud. The other terms of the trust will be enforced unless the fraud pervades the entire trust instrument or the provisions nullified by fraud are indivisible from the valid parts. In order to proof fraud sufficient to invalidate a trust, the contestant must show that a person made a misrepresentation with the intent to deceive the testator for the purpose of influencing the testamentary disposition. The two types of fraud are fraud in the inducement and fraud in the execution. Fraud in the inducement occurs when a person’s misrepresentation causes the testator to make a disposition he would not have made if he had not been deceived. The person making the misrepresentation must intend to deceive the testator. Fraud in the execution happens when a person deliberately causes the testator to sign a testamentary instrument that does not achieve the testator’s intent. See the following examples:
Example: Cory omits his son, Benjamin as a beneficiary of his testamentary trust because his daughter, Diane, tells him that Benjamin has taken a vow of poverty. At that time, Diane knows that her statement is untrue, but she wants to receive a larger portion of her father’s estate. This is fraud in the inducement because Diane’s misrepresentation caused Cory to remove Benjamin as a beneficiary of the trust. If Cory knew that Diane’s statement was false, he would have not omitted Benjamin. However, if Diane
mistakenly thought that Benjamin had taken a vow of poverty, no fraud would be involved because she did not have an intent to deceive.
Example: Whitney was seventy years old, illiterate and the mother of four sons. Whitney had her son Juan bring her the document prepared for her as a testamentary trust for her four sons so that she could sign it. Without
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Whitney’s knowledge, Juan inserted a clause in the trust giving himself half of the proceeds of the trust. Whitney signed the trust document believing that it contained the provision she had discussed with her attorney. This is fraud in the execution because Juan’s deception caused Whitney to sign a document that did not carry out her intent.
Duress is the equivalent to aggressive undue influence. In order to insure that the testamentary follows his wishes, the culprit uses severe physical or emotional pressure. The test for duress is whether the wrongdoer threatened to perform or performed a wrongful act that coerced the testator into making a disposition that the testator would not otherwise have made. Testamentary trusts that are the product of duress of invalid. See the following examples:
Example: Eighty-five year old Elvira had three children. Elvira lived with her daughter, Barbara. Elvira’s late husband Joseph left her a substantial estate. Elvira created a testamentary trust for the benefit of her three
children. Barbara thought that she deserved to receive a bigger portion of the trust than her siblings. Thus, Barbara told Elvira that if she did not amend the trust instrument and grant Barbara a 50% interest in the trust, Barbara would have her put in a nursing home. Elvira was terrified of going to a nursing home, so she complied with Barbara’s demands. The terms of the trust granting Barbara a 50% interest should be invalidated because they are the product of duress.
Class Discussion Tool I.
Nova wanted to establish a trust for the benefit of his children, Nicole and Jeremy.
Jeremy convinced Nova that Nicole was abusing drugs. Nova confronted Nicole and insisted that she enter a rehabilitation program. Nova told her that if she did not obey his command, he would disinherit her. Nicole did not have a drug problem, so she refused to enter a rehabilitation program. Thus, Nova executed a will stating, “I leave my entire estate in trust for my son, Jeremy. I am disinheriting Nicole because she refuses to give up the drugs.” Based upon the facts, what legal arguments could Nicole make to get the trust invalidated?
Class Discussion Tool II.
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Anna was diagnosed with breast cancer. Her doctor treated the cancer with radiation and chemotherapy. In order to combat the side effects of the treatment, Anna got a
prescription for medical marijuana. Anna smoked three joints a day to alleviate her pain and nausea. Anna moved in with her only child, Jean, so she could take care of her. Jean believed in natural healing, so she put Anna on a regiment of organic food, herbal supplements and yoga. Maggie, Anna’s best friend, told Anna that Dr. Oz said that some herbal supplements increased the growth of cancer cells. In fact, Dr. Oz stated that some herbal supplements might decrease the growth of cancer cells. On the day she watched the show, Maggie was having trouble with her hearing aide. Anna refused to take the herbal supplements. Jean got tired of fighting with Maggie over the supplements, so she started slipping them into her food. One day, Anna saw Jean open up a capsule and sprinkle it over her pasta. After that, Anna became convinced that Jean was poisoning her. Anna shared her concerns with Maggie. Maggie told her pastor, Donald, that Anna was in danger. Maggie took Anna to the church to meet with Donald. After the meeting, Anna was so grateful that she gave the church a $500 donation. When he discovered that she had money, Donald convinced Anna to move into an apartment complex owned by his church. Donald and the other members of the church prevented Jean from visiting Anna. Eventually, Donald took Anna to the
church’s attorney and had her create a testamentary trust leaving all of her money in trust for the benefit of the church. A few months later, Anna read in a magazine that Dr. Oz stated that some herbal supplements might decrease the growth of cancer cells. Consequently, Anna told Donald that she was wrong about Jean. Anna told him that she planned to return home to Jean and to modify her testamentary trust to leave her entire estate in trust for the benefit of Jean. In response, David placed guards, so that Anna could not leave the
apartment. One night, Maggie helped Anna escape from the apartment and reunite with Jean. Anna died a few days later before she could amend her testamentary trust. Jean plans to challenge the validity of the trust. What are her strongest arguments?
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