Some Random Thoughts on Phelps

February 1, 2016 § 4 Comments

Last week we talked about the COA’s decision in a will contest, and how the decision lays out the analysis that is required in a testamentary capacity/undue influence case.

As promised here are a few reflections on the case:

  • When parties ask you to represent them in a will contest, it’s important to understand how the burden of proof operates. As was the case here, it was not enough to establish that a confidential relationship existed. There must be much more. And you can expect the other side to counter with strong proof in most cases.
  • Also, physical frailty, illness, and even inability to manage one’s own business, do not establish testamentary incapacity as long as the testator understands the nature and effect of making a will, the natural objects or persons to receive his or her bounty and their relationship to him or her, and is able to determine how to dispose of his or her estate.
  • This case also illustrates how critically important it is for the subscribing witness to understand his or her role. The subscribing witness is the first-line observer of the testator’s capacity.
  • Cordell, the attorney, deserves posthumous kudos for his handling of Dorothy’s execution of the will. He allowed only her and the other subscribing witness into the room, satisfied himself that Dorothy had testamentary capacity, and that there was no undue influence.
  • Also, Dorothy sought independent advice from Cordell, who was unconnected with Henry III. This helped overcome a finding of undue influence.
  • Just because a confidential relationship exists, there is not necessarily undue influence. And even if there is a presumption of undue influence, it can be overcome by clear and convincing evidence of the factors set out in the Grantham case.

You should treat the execution of a will in your office with some solemnity and care. It is, after all, a serious occasion, oftentimes coming after long and careful deliberation by the testator. No one but the subscribing witnesses and testator should be present. Ask questions that will help you and the witnesses determine testamentary capacity: does she know her assets and their worth; does she know who her natural heirs are and how this will affect not only them but also her prior wills; how dependent is she in handling her affairs; has anyone pressured her to make this disposition? And so on. You should admonish the subscribing witnesses not to sign unless they are satisfied that the testator has capacity and is acting freely and voluntarily. You might want to make a few notes to refresh later recollection: who brought her to your office; time of day; who was present in the room when the will was signed, etc. You might even make a checklist to help you memory later. In my experience, testimony from the law office where the will was signed is often the deciding factor.

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§ 4 Responses to Some Random Thoughts on Phelps

  • Dear Judge,
    I’m not as knowledgeable as some and I need to access your prior blog notes regarding Guardianship versus Conservatorship. Can you direct me?
    Thanks, Janice T Jackson

    [Comment edited to omit some personal information]

  • hale1090 says:

    As you point out testamentary relates to the “understanding and effect of making a will. I understand that testamentary includes an understanding of the testator’s “total assets and their worth” as well as an inquiry into to “who is controlling those assets and how dependent the testator is on that person, which would be some indication of a lack of understanding of what the testator had. See: In Re Phelps (no. 2013-CA-01670-CA)(9/06/2013). So it would seem to me that there need to be some detailed discussion about what the testator has, where it is located, wants to do with it, and the effect of that choice, not some perfunctory; “I want everything to go to Susie Q.”
    I wonder how I well we, as attorneys, are prepared to address these issues of capacity and understanding of the testator related to a will executed in our office years ago, particularly when our files may not be kept for decades, our notes may be scant and the testator died decades after we last saw him/her.

    • Larry says:

      I have to say that I would not have been a very good witness in most cases, other than to say, as the ex-secretary did here, that this or that was my practice from which I never deviated.

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