What is Undue Influence?

In Milbourne v. Milbourne, 301 Ga. 111 (2017), The Georgia Supreme Court affirmed a Gwinnett Probate Court Order refusing to grant summary judgment on the issue of undue influence. Milbourne concerned a Will, allegedly procured through the undue influence of the Will-maker’s sister.

The Will-maker was Edison Jamal Milbourne. He suffered a work related brain injury in 1999. His wife worked two jobs and had trouble caring for Edison, so Edison was placed in a rehabilitation facility. Edison’s sister, Vashiti, came into the picture in 2009 and was appointed as Edison’s guardian. Vashiti removed Edison from the rehabilitation center and then went to work finding ways to spend the $726,000 worker’s compensation settlement Edison received. In fact, Vashiti showed up one month after the settlement was finalized and had not been involved as Edison’s caregiver prior to that time.

After Vashiti made huge budget requests, the Court appointed a guardian ad litem. For example, even though Edison could not drive, Vishiti demanded a Cadillac Escalade. She demanded funds to purchase a $300,000 home and $27,000 to furnish it. She also requested $30,000 in advance for caregiver services. The probate court order approved $1,000 for Edison’s care. The guardian ad litem “explained that she had tried to make Edison and Vashti understand that the combination of Edison’s medical needs and his likely lifespan of 26 more years meant that the settlement money could not be spent quickly.” The GAL also recalled Vashiti saying “everybody else had gotten paid, and it was her turn to get paid.”

Edison did not have a Will when Vashiti arrived, so Vashiti set out secure one. The conservator, John Tomlinson, prepared a Will, but Vashiti informed him she would find different lawyers. After taking a stroll through the Yellow Pages, Vashiti settled on Charles Tingle as the lawyer to write Edison’s Will. Vashiti drove Edison to Tingle’s office between two and five times. She tried to have Tingle replace Tomlinson as conservator, but Tingle refused to do that. Vashiti filled out the client information sheet for Edison at Tingle’s office. She gave inconsistent testimony regarding whether she was present during meetings between Edison and Tingle. “Tingle testified that Vashti had “probably” attended at least one of two meetings regarding the will.” During one of the visits to Tingle’s office, Edison executed a Will (the January Will). Nine months later, Edison executed a second Will (the October Will).

Edison died in July 2014, about eight months after executing the October Will. Vashiti presented the October Will for probate. Janay, Edison’s daughter, filed a caveat. Among other objections, Janay asserted that the Will was procured through undue influence. A jury found that the October Will was procured through undue influence. Not to be outdone, Vashiti’s daughter then presented the January Will for probate with Vashiti joining her petition. Janay again filed a caveat asserting, among other objections, that the Will was procured through undue influence. Vashiti and her daughter filed a motion for summary judgment. The Court granted the motion on all grounds except undue influence. Vashiti and her daughter appealed.

The Georgia Supreme Court affirmed the Probate Court’s ruling. Citing Davison v. Hines, the Court said “when a beneficiary under a will occupies a confidential relationship with the testator, is not the natural object of the testator’s bounty, and takes an active part in the planning, preparation, or execution of the will, a rebuttable presumption of undue influence arises.” It then found that Janay “set before the court a “wide variety” of evidence that could lead a jury to conclude that undue influence was a factor in the January Will: Vashti’s position as Edison’s guardian; her emotional control over Edison, who had suffered brain damage; her extensive budgetary requests; her statement that it was her turn to get paid; and her role in the creation of the will. There is no dispute in the record that Vashti sought out Tingle to write a will for Edison, drove Edison to and from Tingle’s office, and paid Tingle’s bill. Moreover, if the jury chooses to credit Janay’s evidence, it could also conclude that Vashti was present while Edison’s will was drafted and that Vashti went to Tingle’s office several times when Edison was not present. In fact, Vashti herself testified that she filled out the client information in Tingle’s office “before we sat down to do the Will.” There is also evidence that Vashti may have isolated Edison, including from his daughter Janay. Finally, Janay sets out evidence that could lead a jury to conclude that Vashti induced in Edison a fear of adult care facilities, and then threatened Edison that he would be sent back to one.”

Although the Court will not indulge mere suspicion of undue influence, in this case the evidence reflected more than mere suspicion. In this case, there was more than enough evidence to deny summary judgment and send the issue to a jury.

In a more recent Michigan case, In re Estate of Horton (Mich. Ct. App. 2023), undue influence reared its head in the contest of the beneficiary designation on a retirement account. Carolynn Ann Horton died on July 12, 2021. She was predeceased by her husband. Her sons, Thomas Horton and Robert Biechler were copersonal representatives of her estate. They sued to set aside the designation of Theresa Jannaro as beneficiary of Carolynn’s IRA.

Jannaro testified that she first met Carolynn eights years earlier at a yard sale. She began assisting Carolynn with housekeeping tasks, spending about 3 to 6 hours per week. Carolynn would pay Jannaro $20 to $50 dollars, and buy lunch or put gas in Jannaro’s car. Jannaro also helped Carolynn with shopping. After Carolynn’s husband died, Thomas initially helped Carolynn with her finances. Jannaro testified that Carolynn was unhappy with how Thomas was paying her bills and asked Jannaro to take over. Jannoro was authorized to write checks, but claimed she never wrote them without Carolynn’s permission. Meanwhile Jannaro was spending more time with Carolynn, up to 20 hours per week, “primarily watching television, as well as talking, cleaning, and paying bills.” Allegedly Carolynn requested Jannaro’s assistance completing her IRA forms. During one of their visits to the bank, Jannaro was designated as Carolynn’s beneficiary. Carolynn died six days later.

Carolynn’s sons alleged the beneficiary designation was the product of undue influence. They argued “that a confidential or fiduciary relationship existed because there was evidence that Carolynn placed complete trust in the faithful integrity of defendant over multiple aspects of Carolynn’s finances, including her checking account, bill paying, and IRA rollover.”

Jannaro filed a motion for summary judgment. The Probate Court ruled for Jannaro, granting summary judgment. An appeal followed and the decision below was reversed.

The Court began:

Generally,

[t]o establish undue influence it must be shown that the grantor was subjected to threats, misrepresentation, undue flattery, fraud, or physical or moral coercion sufficient to overpower volition, destroy free agency and impel the grantor to act against his inclination and free will. Motive, opportunity, or even ability to control, in the absence of affirmative evidence that it was exercised, are not sufficient. [In re Karmey Estate, 468 Mich 68, 75; 658 NW2d 796 (2003).]

However, a

presumption of undue influence arises upon the introduction of evidence that would establish (1) the existence of a confidential or fiduciary relationship between the grantor and a fiduciary, (2) the fiduciary, or an interest represented by the fiduciary, benefits from a transaction, and (3) the fiduciary had an opportunity to influence the grantor’s decision in that transaction. [In re Gerald L Pollack Trust, 309 Mich App 125, 149; 867 NW2d 884 (2015) (quotation marks and citation omitted).]

The phrase “confidential relationship” is a term of art. It is founded in trust or confidence reposed by one person in the integrity and fidelity of another. The Court found there was sufficient evidence for a jury to find there was a confidential or fiduciary relationship between Carolynn and defendant based on the trust and confidence Carolynn placed in defendant with respect to her financial affairs. The presumption of undue influence, once established, cannot be decided by the trial court. Whether that presumption is rebutted is a question for the jury. For that reason, the case was reversed and remanded for further proceedings.

Sandra D. Glazier reviewed the Horton case in LISI Estate Planning Newsletter #3048 (June 15, 2023). She warned that not all influence is undue and that challengers should not rely on a presumption of undue influence. They should also look for “red flags.” In Horton, red flags included advanced age, that Mrs. Horton was recently widowed and living alone, that the beneficiary designation was apparently not in keeping with previously expressed estate planning desired and that Jannaro’s actions might have constituted active procurement. Jannaro’s action also occurred shortly before Carolynn’s death.

Glazier’s observations are echoed in Davison v. Hines, where the Court said “even if no rebuttable presumption of undue influence could be shown, there was sufficient evidence for a jury to conclude that Mr. Hine’s Will and Trust were the result of undue influence.”

[A]n attack on a will as having been obtained by undue influence may be supported by a wide range of testimony, including evidence of a confidential relation between the parties, the reasonableness or unreasonableness of the disposition of the testator’s estate, old age, or disease affecting the strength of the mind, tending to support any other direct testimony or any other proved fact or circumstance going to show the exercise of undue influence on the mind and will of the testator.

The lesson here, is to gather, organize and focus evidence of influence that was undue on the transaction being challenged, focusing on action leading up to and including the event itself. One problem with gathering this evidence, as Glazier notes, is that undue influence often is not exercised openely. It is like a crime and seeks secrecery to accomplish its poisonous work. Quoting from Walts v. Walts, 127 Mich. 607 (1901). For that reason, circumstantial evidence is often required to prove its existence.