A recent case highlights issues with Will Caveats (aka Will Challenges or Testing of a Will) and the influence of a power of attorney.

In the case IN RE RUBY ELLEN KING – 13 E 745 and 13 CVS 12218 (Wake County, NC) two of the deceased’s children were disinherited in a purported (questionable) will written by 92 year old Ruby King. Ms. King died in 2013 at the age of 95.

Two lawsuits were filed: 1) the Estate Caveat & 2) tortuous interference with contract.

The facts: Ms. King had 3 children: Gene, Robert & Mary Ann. In 2005 the deceased made her son, Gene King, her power of attorney.

Shortly thereafter Gene transferred her money into a joint account with him. Gene was the sole beneficiary at Ruby’s death.

Then Ruby did a will in 2009 naming Gene her only heir. The other 2 children were disinherited.

The caveators alleged that Ruby had a long history of dementia prior to the execution of her will, possibly as far back as 2005.

The caveators based their will challenge on the fact that Ruby was incompetent (lacked testamentary capacity) and undue influence by Gene over his mother, Ruby. The caveat challenge in essence says the will is invalid and should be rescinded. Lack of testamentary capacity is a challenge to a will based on a person not being capable or competent to understand what they are doing. That they don’t have the ability to direct how their estate should be divided.

Undue influence means that a person has control over a person’s decision making, so that the testator is not making a will.

The legal definition of undue influence in regards to a Last Will & Testament challenge or defense is:

undue influence n. the amount of pressure which one uses to force someone to execute a will leaving assets in a particular way, to make a direct gift while alive, or to sign a contract. The key element is that the influence was so great that the testator (will writer), donor (gift giver), or party to the contract had lost the ability to exercise his/her judgment and could not refuse to give in to the pressure. Evidence of such dominance of another’s mind may result in invalidation of the will, gift, or contract by a court if the will, gift, or contract is challenged. Participation in preparation of the will, excluding other relatives, being present when the testator and the attorney meet are all evidence of undue pressure, and an imbalance or change in language which greatly favors the person exercising the influence are factors in finding undue influence. Example: Pete Pounder constantly visits his aunt Agnes while she is ill and always urges her to leave her mansion to him instead of to her son. Pounder threatens to stop visiting the old lady, who is very lonely, tells her she is ungrateful for his attention, finally brings over an attorney who does not know Agnes, and is present while she tells the attorney to write a new will in favor of Pounder.

The legal definition of “Testamentary Capacity” is:

testamentary capacity n. having the mental competency to execute a will at the time the will was signed and witnessed. To have testamentary capacity the author of the will must understand the nature of making a will, have a general idea of what he/she possesses, and know who are members of the immediate family or other “natural objects of his/her bounty.” Inherent in that capacity is the ability to resist the pressures or domination of any person who may try to use undue influence on the distribution of the testator’s (will writer’s) estate.

Back to the Ruby King case: Ultimately, after the filing of the cases and an informal discovery between the parties in the case, the parties held a mediation. After hours of negotiation the parties agreed to settle whereby the caveators received $185,000.

A Family Settlement Agreement between the litigating parties was approved by a Wake County Superior Court judge. The parties acknowledge the settlement has been paid in full.

This is an example of a Will caveat case with claims for a power of attorney abuse issues too.

If you or someone you know has a will caveat / will defense matter or a power of attorney abuse issue, contact Kirk Sanders at  336-768-1515

NC Will Contest attorney, Kirk Sanders, handles fiduciary litigation, including:

Will Caveats

Tests of the validity of wills

Defense of wills at Probate- Propounding the will

Conflict of Interest

Breach of Fiduciary Duty

Family Settlement Agreement (term used for an agreement reached by all of the heirs as to how an estate should be distributed. Oftentimes, it is used to overcome the effect of a poorly drafted will.)

www.kirksanderslaw.com