Saturday, July 16, 2011

Will Contest Ruling from Iowa Court of Appeals

The Iowa Court of Appeals had a recent ruling on a will contest based on a claim of undue influence and lack of "brotherly love".

Mom left her substantial estate to one of her two sons, and disinherited the other son completely. The disinherited son challenged the will based on undue influence and lost, then filed an appeal.

The Court of Appeals goes through a thorough analysis of the undue influence elements in a challenge to a will. Those elements being: (1) susceptibility to undue influence; (2) opportunity; (3) disposition to unduly influence; (4) result which is the effect of undue influence.

Of interesting note is the fact that apparently there was a recording of her estate plan changes. While it is not clear whether these were video or audio taped, the court indicated the recording corroborated the attorneys' statements about her susceptibility.

The use of a recording, in my opinion, could cut both ways in supporting a will. For example, if a recording is made, it raises the question of "why" a recording was even made ("because we knew there was a concern about the individuals's capacity"). Also, the recording process may make the individual nervous and less at ease, which may translate to raising additional questions about the individual.

My recommendation has been to not do a recording, but the Court here may make me question that process. Of course, every case is different and has unique facts.

On the Iowa-Law Blog, I posted about another recent ruling involving an interference with an inheritance case.

1 comment:

Steven J Fromm said...

Matt: I just had a similar problem where a mom wanted to exclude her daughter. During my interview she stated "I do not want to give her one (expletive) dime." We had a video tape deposition set up for her to state her wishes via another attorney in my office. It turned out she could not make the depostion and then decided to just get in done. At her signing of the documents, I asked her in front of the signing witnesses and the notary about excluding her one daughter and why. Boy she was really quite colorful about her wishes. I have to tell you that if ever called to testify these witnesses and myself have quite a story to tell. Anyway, I think the deposition should be considered in these situations.