A recent decision by the Indiana Supreme Court reminds practioners of the difficulty plaintiffs can face trying to prove undue influence in a will change. In Lasater v. House, 841 N.E.2d 553, the court excluded as hearsay numerous statements made by a testatrix regarding her nephew's influence on her estate-planning decisions.
In 1994, Opal Pullen, a widow with no children, executed a will leaving $2,000 to each of five family members and the residue of her estate, including a 120-acre farm, to her neighbors. Pullen named a trust company as personal representative and a local banker who was also a family friend as her attorney-in-fact.
Four years later, Pullen revoked the banker's power-of-attorney and named her nephew, Doug House, as her new attorney-in-fact. A month later, she executed a new will that increased the gifts to family members, including House, to $20,000, left only half of the farm to her neighbors, and left the residue of her estate to family members. This new will named House as the personal representative.
Pullen died at the age of 91 in January of 2001 and her second will was admitted to probate. The neighbors contested the second will on the grounds that it was the result of undue influence and that Pullen lacked testamentary capacity at the time it was signed.
During discovery, several witnesses testified that Pullen made statements to them concerning both her estate plan and her relationship with the beneficiaries. The evidence included testimony:
- from Pullen's former insurance agent that she did not want House to have anything;
- from caretakers that Pullen was good friends with her neighbors but was not close to House and that it was House's idea to name a family member as her agent-in-fact;
- from the banker that Pullen was afraid of House and was replacing the banker with House as her attorney-in-fact to keep peace in the family; and
- from her hairdresser that Pullen had always said her farm would go to her neighbors but that she changed her will against her wishes because House was family.
Writing for the Indiana Supreme Court, Justice Robert D. Rucker remarked that whether a particular form of evidence can be produced in a will challenge depends on the nature of the challenge. As a result, hearsay may be introduced for some purposes, but statements of the testatrix -- other than those made at the time the will is being executed -- are not admissible for the purpose of proving the will was the result of undue influence.
The neighbors countered by stating that the statements were relevant to Pullen's state of mind at the time she executed her will and fall under the state-of-mind exception to the hearsay rule.
While Justice Rucker acknowledged that such statements may sometimes be admissible to prove state of mind "because the conditions of the mind are revealed to us only by external manifestations," he ultimately rejected the neighbors' argument, finding that the use of hearsay statements to prove state of mind is distinguishable from the use of such statements to prove undue influence. While Justice Rucker also acknowledged that a challenge on the grounds of undue influence on some level involves state of mind -- such as the testator's ability to be unduly influenced -- he maintained that such tangential involvement is insufficient to transform classic hearsay into non-hearsay.
Still, all is not lost for the plaintiffs. Justice Rucker drafted his opinion very narrowly to apply only to the issue of undue influence, leaving open the possibility that the statements could be admissible for the purpose of proving that Pullen lacked testamentary capacity.
Of course, seasoned trial lawyers know that rulings on hearsay and its exceptions vary widely, depending on the judge. It's entirely possible another judge in another courtroom would have sustained the hearsay exception in Lasater.
But why play this hearsay Russian roulette? Pay attention to what's going on while testators are still alive. In Lasater, the banker, neighbors or drafting attorney -- all could have heard Opal Pullen's complaints about her nephew and taken legal action, possibly obtaining a restraining order against the nephew or engaging a physician to examine Pullen and opine about her susceptibility to undue influence. Remember, sometimes it's not "better late than never," sometimes it really is too late.
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