Eva Johanna Rova Barnes (“Eva”) was born on July 17, 1916. She grew up on a parcel of land that was homesteaded by her parents. The property included a residence, where Eva lived alone after the death of her husband and daughter. The parcel of land also included a residential rental property that was owned one-half by Eva and one-half by relatives (“The Rovas”) and farmland. Michelle Wells (“Michelle”) was a rural mail carrier who befriended Eva. After Eva fell at home, Michelle and her husband, Dennis, became her caretakers.
Michelle and Dennis were experiencing financial difficulties when they became Eva’s caregivers. Eva paid many of their bills. Over time, Michelle and Dennis began isolating Eva from contact with the Rovas, and changed her phone plan to make it more difficult for her out-of-town relatives to contact her. They made several false statements about the Rovas which exacerbated Eva’s unfounded anger and distrust of the Rovas.
While never formally diagnosed with dementia, there were numerous notes in Eva’s medical records of mild cognitive impairment that got progressively worse for several years prior to her death. Michelle drove Eva to an estate planning attorney to change her estate plan, but did not participate in the meeting. Eva did not execute her new Will on her first attempt, as her attorney was concerned she could not remember the name of one of her nieces. Two days later, Eva returned and signed the new Will. Immediately prior to the second attempt, Michelle took Eva to her doctor and requested that the doctor prescribe medication to help Eva with her memory problems.
The new Will left everything to Michelle and Dennis. The Will removed the Rovas, her closest family members, and all other family members, as beneficiaries. This was a dramatic departure from the two prior Wills Eva had executed. The prior Wills left the real property, which had been in Eva’s family for more than century, to the Rovas. The estate planning attorney also prepared a new power of attorney naming Michelle as her agent and revoking a previous power of attorney which had named her niece (one of the Rovas) as her agent.
After becoming Eva’s agent, Michelle began writing checks to herself and other family members. Two days before Eva’s death, Michelle paid the mortgage on her own residence using one of Eva’s checks. The check cleared on the day Eva died. Eva was comatose when the mortgage check was written.
After Eva’s death, the Rovas brought a petition to invalidate Eva’s new Will, alleging that Eva lacked capacity and was subject to undue influence when it was executed. After a five-day bench trial, the judge ruled that, while Eva had testamentary capacity on the day she executed the new Will, it was procured by undue influence and was void. The court made 83 findings of fact and 23 conclusions of law in arriving at its decision. Michelle and Dennis appealed the ruling and the Court of Appeals reversed the trial court, holding that the evidence presented by Michelle and Dennis was sufficient to overcome the presumption of undue influence. The Washington Supreme Court, in The Matter of Estate of Eva Johanna Rova Barnes, No. 91488-5 (January 28, 2016), reversed the Court of Appeals, holding that it had erred in finding that the Rovas had not met their burden in establishing that Michelle and Dennis had unduly influenced Eva.
In analyzing the facts, the Washington Supreme Court applied the test first articulated in Dean v. Jordan, 194 Wash. 661, 79 P.2d 331 (1938). The court in Dean identified certain facts and circumstances that would raise a presumption of undue influence:
The most important of such facts are (1) that the beneficiary occupied a fiduciary or confidential relation to the testator; (2) that the beneficiary actively participated in the preparation or procurement of the [W]ill; and (3) that the beneficiary received an unusually or unnaturally large part of the estate. Added to these may be other considerations, such as the age and condition of health and mental vigor of the testator, the nature and degree of relationship between the testator and the beneficiary, the opportunity for exerting an undue influence, and the naturalness or unnaturalness of the [W]ill.
Applying the facts of the case to the test developed in Dean, the court held that Michelle was in a confidential relationship with Eva, both as agent and as caregiver. The court also held that, although Michelle was not present in the room when Eva signed the Will, she drove Eva to the series of meetings that led to its execution. It further explained that while the mere act of driving Eva to an appointment with her attorney is not sufficient in and of itself to satisfy the second part of the Dean test, the new Will “was executed on the heels of what appeared to be [Michelle’s] systematic manipulation of [Eva].” Finally, the court held that the total exclusion of the Rovas from the Will was such a departure from her previous Wills that the obviously conclusion was that she received an unusually large part of Eva’s estate.
It is natural for a senior to want to reward their caregivers, especially where the caregiver is related to the senior. In some cases, a senior with complete capacity and without any undue influence from the caregivers, may leave a substantial portion of their estate to the caregivers. Such gifts are always suspect because of the position of trust and power that the caregiver holds over the senior.
In a case where a gift or bequest to a caregiver is desired, the capacity of the senior should be documented thoroughly. A geriatric psychiatrist or other medical professional trained in assessing capacity and detecting undue influence should be consulted, if necessary. If possible, the senior should document in their own handwriting why they are making a change to the estate plan. The senior should be encouraged to leave meaningful gifts to relatives and others who were previously named as beneficiaries, and to include a “no contest’ clause in the Will or trust so as to discourage the other beneficiaries from challenging the Will or trust. Finally, to the extent possible, the caregiver should take no part in getting the estate plan changed. This would even include calling to arrange the appointment or accompanying the senior to the appointment with the estate planning attorney.
Our law firm focuses on estate planning and the administration of trusts and estates for clients of all levels of wealth. We offer comprehensive estate planning services, including incapacity planning and assistance with lifetime funding of trusts. We can assess whether a change in an estate plan is possible, and help plan to avoid a challenge such as occurred in Eva’s case. As a member of the American Academy of Estate Planning Attorneys, our firm is kept up-to-date with information regarding cutting edge estate and financial planning strategies for persons of all levels of wealth. You can get more information about a complimentary review of your clients’ existing estate plans and our planning and administration services by calling our office.
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