THE CASE OF LUCKY PIERRE

Pierre was a well-educated 50 year-old.  He had traveled the world and spoke three languages with relative ease.  Pierre's engaging smile, quick wit, infectious good cheer, and daily attentions eventually endeared him to Cathy, a 91 year-old who had been widowed forty years earlier. 

Age had not diminished Cathy's iron will.  She generally controlled everyone in her world.  She had won election as president of her garden club twenty years earlier, and quit in a huff when some of the newer members pressed for elections.  Cathy had no children and decided just a few months before her death to leave her $4.3 million dollar ocean-front home to Pierre, instead of the distant relatives who hadn't seen much of Cathy for many years.  

Chris, who was Cathy's distant cousin, challenged Cathy's will.  She contended that Pierre had unduly influenced Cathy, that the gift to him was accordingly void, and that as beneficiaries of Cathy's prior will, (which was 14 years old) she and Cathy's 92 year-old sister should get the house. 

There was a complication:  Pierre's attorney's partner drafted the will that benefited Pierre.  To see the brief that led to a successful outcome for Pierre based on the absence of undue influence, read on.


Mrs. CATHY M. JONES died almost blind on October 2, 1998 at the age of 92. She was a strong-willed woman who would not tolerate anyone bossing her around. MRS. JONES was the President of the Garden Club in Orange County for 17 years. She ruled that 200-member organization without the annual elections required by the charter. When challenged to hold elections, she quit in a huff.

MRS. JONES'S attorney-prepared will and trust made in July, 1998, left the bulk of her estate, including her home, to her 51 year-old friend of five years, LUCKY PIERRE. The friendship was not sexual. LUCKY PIERRE provided almost-daily companionship and affection, while MRS. JONES'S would-be heirs did nothing.

CHRIS, who is MRS. JONES'S first cousin of the half blood once removed, was the remainder beneficiary of MRS. JONES'S 1985 will. CHRIS moved to Santa Maria in 1990. MRS. JONES'S relationship with CHRIS was distant. CHRIS had stopped attending meetings of the Garden Club years before MRS. JONES died. MRS. JONES'S phone records disclose that she did not call CHRIS even one time in 1996.

Undaunted, CHRIS objects to the 1998 documents on the sole ground of undue influence. It is undisputed that MRS. JONES had capacity to make and sign her 1998 estate plan; CHRIS'S expert psychiatrist admitted this at deposition.

MRS. JONES'S 91 year-old sister MABEL SMITH has been joined in the objection by her granddaughter Maria Fandango, acting as guardian ad litem pursuant to an April 6, 1998 power of attorney. MABEL SMITH, who has dementia, had been living with MRS. JONES for a year and was in the house when MRS. JONES signed her 1998 estate plan.

MRS. JONES'S friend of thirty years, Professor Fred Diggs, served as MRS. JONES'S vice president of the Garden Club for many years. He testified at deposition that MRS. JONES was outspoken; that her personality was strong; that she was not easily influenced; that she was not capable of being dominated; and that during his last telephone conversation with her in August, 1998, he found no change in her strength of character.

MRS. JONES'S nephew GEORGE LAFAYETTE, who had known her for more than 40 years, testified at deposition that he had visited her in August, 1998; that he found her "very lucid"; that LUCKY PIERRE was a little bit like her adopted son; that she had always liked to give orders; that nothing would let him guess that she would be able to be influenced; and that MRS. JONES'S relationship with CHRIS was tense.

MRS. JONES described ANTOINETTE DES MOULINS as her dear friend. They had known  each other for more than thirty years. MRS. JONES had told her that CHRIS would be in for a surprise if she thought she were going to inherit anything.

MRS. JONES told attorney ROBERT GOMEZ on June 26, 1998, that she wished to eliminate the provision of her 1985 will which had contained gifts to CHRIS and SMITH.

MRS. JONES told RONALD PAPPAS, the attorney who prepared her 1998 estate planning documents, that she did not wish to provide for her family and that she wanted to provide for LUCKY PIERRE, whom "she loved very much."

MRS. JONES told JOAN FURILLI, the notary-on-wheels before whom she had acknowledged her signatures on the 1998 estate planning documents, that she was cutting out CHRIS.

MRS. JONES received visitors frequently. She had speed dialing which enabled her to make phone calls with the push of one button. At deposition CHRIS admitted as follows:

Q "Did you have any trouble reaching her on the phone in 1998?"

A "I don't believe so."  (CHRIS Deposition of 9/29/99, 29:14-16)

SYNOPSIS OF THE LAW

The attached BAJI forms show that in order to invalidate a will based on a claim of undue influence, the collateral heir must prove "coercion destroying the free will of the decedent, substituting for his own another person's will and compelling the decedent to make a disposition which he would not otherwise have made." The Supreme Court and the Court of Appeal have prescribed separate tests for a presumption of undue influence. When the presumption is triggered, the burden shifts to the proponent to show that the will was not the product of undue influence.

MRS. JONES HAD THE RIGHT TO DISPOSE OF HER PROPERTY AS SHE SAW FIT.

In Estate of Fritschi (1963) 60 Cal.2d 367, 33 Cal.Rptr. 264, the Supreme Court reversed an order denying probate of a will in which an ophthalmologist left substantial assets to his receptionist:

" . . . [T]he right to testamentary disposition of one's property is a fundamental one which reaches back to the early common law; the right to dispose of one's property by will is most solemnly assured by law, and . . . does not depend upon its judicious use. (citation omitted) The right has, of course, been restricted by legislative and social controls (citations omitted) as well as by heavy inheritance taxation. Perhaps these limitations upon the area of testamentary disposition have served to sharpen the court's vigilance in protecting the testator's right to be free of interference in the area which remains to him. In any event a legion of decisions strike down attempts of juries to invalidate wills upon the ground of undue influence in order to indulge their own concepts of how testators should have disposed of their properties.

"Illustrative expressions of the courts demonstrate the stringency with which they protect the testamentary disposition against the attack of undue influence. Thus such influence must 'destroy the testator's free agency and substitute for his own another person's will.' (citation omitted)" Evidence must be produced that pressure was brought to bear directly upon the testamentary act . . . . [The influence] must amount to coercion destroying free agency on the part of the testator." (citation omitted) "[The] circumstances must be inconsistent with voluntary action on the part of the testator" (citation omitted) and "[the] mere opportunity to influence the mind of the testator, even coupled with an interest or a motive to do so, is not sufficient." (citation omitted) 60 Cal.2d at 373, 33 Cal.Rptr. at 267-268.

THE SUPREME COURT'S FIVE-PRONG TEST FOR A PRESUMPTION OF UNDUE INFLUENCE:

In Estate of Lingenfelter (1952) 38 Cal.2d 571, 586-587, 241 P.2d 990, 999-1000, the decedent left the bulk of her estate to her deceased husband's sister. The deceased husband's secretary, who was a beneficiary of the decedent's prior will, unsuccessfully contested the will on the ground of undue influence. The Supreme Court set forth its criteria for a presumption of undue influence:

"(1) The provisions of the will were unnatural. . . .; (2) the dispositions of the will were at variance with the intentions of the decedent, expressed both before and after its execution; (3) the relations existing between the chief beneficiaries and the decedent afforded to the former an opportunity to control the testamentary act; (4) the decedent's mental and physical condition was such as to permit a subversion of his freedom of will; and (5) the chief beneficiaries under the will were active in procuring the instrument to be executed." 38 Cal.2d at 586-587, 241 P.2d at 999.

MRS. JONES'S WILL IS NOT UNNATURAL IN ITS PROVISION FOR FRIENDS RATHER THAN COLLATERAL RELATIVES.

"Whether between relatives, or between friends and relatives, numerous cases have held that a will is not unnatural where it provides for one who has had a particularly close relationship with, or cared for the testator, or is in comparatively greater need of financial assistance." Estate of Mann (1986) 184 Cal.App.3d 593, 607, 229 Cal.Rptr. 225, 232. "But, the fact that the testator fails to provide for collateral heirs, such as nephews, or even brothers and sisters, does not support the contention that the will is unnatural." In re Ventura's Estate (1963) 217 Cal.App.2d 50, 60, 31 Cal.Rptr. 490, 495, (emphasis original; see also Estate of Sarabia (1990) 21 Cal.App.3d 599, 608, 270 Cal.Rptr. 560, 565.

THE COURT OF APPEAL'S THREE-PRONG TEST FOR UNDUE INFLUENCE:

In Estate of Sarabia (1990) 221 Cal.App.3d 599, 270 Cal.Rptr. 560, an opera singer left his estate to his live-in manager/agent, excluding his brother. The court held that since the focus of the decedent's life had shifted from the brother, there was no undue profit and therefore no presumption of undue influence. The Sarabia court spelled out a three-prong test for the presumption of undue influence:

"The presumption in favor of a will may be neutralized by a presumption that undue influence was brought to bear on the testator. The presumption of undue influence arises only if all of the following elements are shown: (1) the existence of a confidential relationship between the testator and the person alleged to have exerted undue influence; (2) active participation by such person in the actual preparation or execution of the will, such conduct not being of a merely incidental nature; and (3) undue profit accruing to that person by virtue of the will. If this presumption is activated, it shifts to the proponent of the will the burden of producing proof by a preponderance of evidence that the will was not procured by undue influence." 221 Cal.App.3d at 605, 270 Cal.Rptr. at 563.

DID A CONFIDENTIAL RELATIONSHIP EXIST BETWEEN MRS. JONES AND LUCKY PIERRE?

A claim of confidential relationship cannot be based on only the July 3 power of attorney. Attorney RONALD PAPPAS prepared that instrument and the July 14 will, trust, and partnership agreement as parts of MRS. JONES'S estate plan. Those several writings, although signed on different dates, comprise one transaction. Civil Code 1642; B. Witkin, 1 Summary of California Law (9th ed., 1987, Contracts 687 "Several Writings," citing Cadigan v. American Trust Company (1955) 131 Cal.App.2d 780, 281 P.2d 332, 336, where an April 12 promissory note and an August 10 letter were considered parts of one transaction. Although MRS. JONES loved LUCKY PIERRE, a bond of affection does not by itself create a fiduciary relationship. All of the cases discussed by Professor Witkin deal with some other status: business advisor, attorney, legal secretary companion, religious counselor, and party in an illicit relationship. B. Witkin, 12 Summary of California Law (9th ed., 1990) Wills and Probate 192, "Confidential Relationship and Presumption." There was no such pre-existing legal relationship between MRS. JONES and LUCKY PIERRE. She made him her agent under the power of attorney and nominated him as her executor and made him the general partner of the partnership which owned her house as part of the same transaction. LUCKY PIERRE never used the power of attorney except to meet with MRS. JONES'S physician.

DID LUCKY PIERRE ACTIVELY PARTICIPATE IN THE ACTUAL PREPARATION OR EXECUTION OF THE 1998 WILL?

LUCKY PIERRE accompanied MRS. JONES to Attorney ROBERT GOMEZ'S  office on June 26, 1998, where the three of them and Attorney LINDA SANCHEZ went over changes to MRS. JONES'S 1985 will. Mrs. JONES made it clear to Mr. GOMEZ, a real estate lawyer whom she had known for more than fourteen years, that she wished to eliminate the provision in the old will which had benefitted CHRIS and the sister. She did not there announce that she wanted to provide for LUCKY PIERRE.

MRS. JONES thereafter called Mr. GOMEZ and told him that she had engaged counsel who specialized in estate planning. That lawyer, RONALD PAPPAS, met with her at her home on June 28. He returned on July 14, 1998, bringing the papers for her to sign, explaining them to her and serving as a subscribing witness to the will. It is enough that the attorney explains the substance of the will to the client; it is not necessary that the client read every provision. Estate of Hopkins (1934) 136 Cal.App. 590, 597, 29 P.2d 249.

LUCKY PIERRE had consulted with Attorney SANTINI, whose name appears on Attorney PAPPAS'S masthead of Pappas & Santini, two times before Mrs. JONES engaged Mr. PAPPAS. Those consultations dealt with an unrelated real estate matter. CHRIS'S suggestion that there was a conflict such as to invalidate the 1998 estate plan is eroded by Mr. PAPPAS'S deposition testimony that he had advised MRS. JONES and LUCKY PIERRE to have separate counsel.

Attorney PAPPAS'S failure to comply with Rule 3-310, California Rules of Professional Conduct does not invalidate the 1998 estate plan. In Moxley v. Robertson (1959) 169 Cal.App.2d 72, 75, 336 P.2d 992, 994, an attorney properly represented two parties who both wanted to recover equipment from a third party to complete their purchase contract. MRS. JONES'S interests and LUCKY PIERRE'S interests were likewise in alignment when Pappas prepared the 1998 estate plan, in that MRS. JONES wanted to make a gift to LUCKY PIERRE. Whether a party has a separate attorney is but one factor determining undue influence. Nagle v. Valadez (1962) 202 Cal.App.2d 51, 55, 20 Cal.Rptr. 548, 550.

In Estate of Fritschi (1963) 60 Cal.2d 367, 33 Cal.Rptr. 264, the Supreme Court examined the connection between the proponent and the attorney who drafted the will.

"The procurement of a person to witness the will or of an attorney to draw it does not itself constitute active participation in the preparation of the will. . . . . (citation omitted) [A] charge of undue influence could not be upheld upon the ground that the beneficiary called the attorney to draw the will, was present at its execution, and paid the attorney." 60 Cal.2d at 376, 33 Cal.Rptr. 269-270.

Active participation in procuring the execution of the will cannot be inferred from the fact that the proponent accompanied the decedent to an attorney's office, in the absence of any indication that the decedent went there at the proponent's instigation or request, or that the decedent was not acting entirely in accord with her own desire. Estate of Lingenfelter (1952) 38 Cal.2d 571, 586, 241 P.2d 990, 999.

In Estate of Morcel (1912) 162 Cal. 188, 121 P.733, the testatrix's husband went with her to the office of their lawyer for the purpose of making a will, and remained in the room with her when she gave instructions as to the provisions she desired. The court set aside the verdict of undue influence as not justified by the evidence.

DID LUCKY PIERRE PROFIT UNDULY IN RELATION TO CHRIS AND MABEL SMITH?

"To determine if the beneficiary's profit is 'undue' the trier must necessarily decide what profit would be 'due.' These determinations cannot be made in an evidentiary vacuum. The trier of fact derives from the evidence introduced an appreciation of the respective relative standings of the beneficiary and the contestant to the decedent in order that the trier of fact can determine which party would be the more obvious object of the decedent's testamentary disposition." Sarabia, id., 221 Cal.App.3d at 607, 270 Cal.Rptr. at 564.

The court is therefore required to weigh MRS. JONES'S affection for LUCKY PIERRE and the time she spent with him in light of the relationship with CHRIS. MRS. JONES declared repeatedly that she did not wish to provide for CHRIS, and that CHRIS would be in for a surprise if she thought she were getting anything from her. CHRIS had lived in Santa Maria since 1990 and saw MRS. JONES only occasionally. LUCKY PIERRE, on the other hand, visited MRS. JONES almost daily, and provided the companionship she loved.

The court might also inspect the relationship between MRS. JONES and her sister MABEL SMITH, which was strained by the difficulties the two encountered while living together.

A PARTY OBJECTING TO A WILL ON THE GROUNDS OF UNDUE INFLUENCE BEARS A HEAVY BURDEN OF PROOF.

Probate Code  §8250 provides that the burden of proving undue influence is on the contestant. "It is frequently said that a strong showing is necessary, or that the proof must be by clear and convincing evidence." B. Witkin, 12 Summary of California Law (9th ed., 1990) Wills and Probate 187, citing, inter alia, Estate of Ventura (1963) 217 Cal.App.2d 50, 58, 31 Cal.Rptr. 490, 494.

Circumstantial evidence of undue influence is sufficient only when it is inconsistent with the absence of undue influence. In re Bould's Estate (1955) 135 Cal.App.2d 260, 270, 287 P.2d 8, 13. Proof of conduct which merely inspires affection and gratitude, standing alone, does not even tend to prove undue influence. If it results in recognition by a testamentary act it is regarded as a natural and proper result. If the acts themselves are not to be condemned, the fact that they are inspired by a selfish motive does not give them legal significance. Bould, id., 135 Cal.App.2d at 270, 287 P.2d at 13.

IF THERE IS A PRIMA FACIE SHOWING OF UNDUE INFLUENCE, THE BURDEN SHIFTS TO THE PROPONENT TO SHOW THAT THE ESTATE PLAN WAS NOT INDUCED BY UNDUE INFLUENCE.

The courts of appeal are split as to whether the proponent must rebut a presumption with a preponderance of the evidence, or whether the proponent has the burden of only producing evidence.

In Estate of Sarabia (1990) 221 Cal.App.3d 599, 605, 270 Cal.Rptr. 560, 563, the court held that if the presumption of undue influence is activated, ". . . it shifts to the proponent of the will the burden of producing proof by a preponderance of the evidence that the will was not procured by undue influence."

In contrast, Estate of Schlyen (1951) 105 Cal.App.2d 648, 661, 234 P.2d 211, 219, held that the proponent has only the burden of producing evidence:

"The proponent was only required to rebut the presumption. In rebutting the presumption she was not required to produce a preponderance or greater weight of the evidence."

Professor Witkin discusses without conclusion the conflicting standards at 12 Summary of California Law (9th ed., 1990) Wills and Probate 192, contrasting the first district's opinion Estate of Gelonese (1974) 36 Cal.App.3d 854, 863, 111 Cal.Rptr. 833, 837-838, which was decided after the adoption of the Evidence Code on January 1, 1967, and the second district's decision In re Erickson's Estate (1934) 140 Cal.App. 520, 527, 35 P.2d 628, 631-632, which held that only the burden of going forward shifts.

CONCLUSION

It is undisputed that MRS. JONES retained her faculties until the end of her long life. The issue before the court is not whether her testamentary dispositions are good or bad; the narrow inquiry is whether LUCKY PIERRE overcame her mind, destroyed her free will, and coerced her into making a disposition she would not have otherwise made.

Like Dr. Fritschi who left substantial assets to his receptionist, MRS. JONES was free to leave her worldly goods to anyone she chose. She loved LUCKY PIERRE. She did everything she could to provide for him, to exclude CHRIS, and to reduce the 1985 will's gift to her 91 year-old sister.  The evidence shows that MRS. JONES did exactly what she wanted.

Respectfully submitted,

 

ROBERT A. FOSTER, II
Attorney for LUCKY PIERRE

To see a less fortunate result for a would-be beneficiary, see the case of Unlucky Molly.

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