Probate Investigations |
| This article appeared in the June 2011 issue of Res Gestae, the Lee County Florida Bar Association monthly magazine. |
Ten days after Grandpa’s death his Will was read. His grieving family was shocked to learn that Grandpa had recently changed his Last Will and Testament and the bulk of his estate was devised to a young female neighbor who lived next door. In fact, the family was left with a very small inheritance that did not reflect their understanding of Grandpa’s stated intentions in prior months and years.
This scenario, with almost endless variations on it, is not that unusual. Sadly, the realistic demands of our fast-paced society leave only limited time to spend with elderly family members. Often, outside caregivers are employed or family members volunteer time and attention to Grandpa. This opens the door to opportunists who either ingratiate themselves to the sick and aged or, indeed, manipulate, deceive or coerce those nearing the end of life. When suspicions of this nature arise, there are investigative approaches to assist counsel in the fact-finding aspect of this type of case. These inquiries are usually conducted after the testator has died and the estate probated, but not always. Investigation should also be employed to uncover undue influence, etc. in real time when opportunity presents itself.
The two primary issues in probate investigations are (1) to ascertain whether or not the testator had the testamentary capacity, or legal competence, to make his or her Last Will and Testament (LW&T) or codicil at the time it was executed and (2) whether there was any undue influence. Resolving these issues involves inquiry with the witnesses to the execution of the LW&T as well as interviewing medical personnel and others who came into contact with the testator (now deceased) in his/her last days.
In most states the LW&T must be witnessed by two adults not related to the testator, one of whom is sworn by a notary public or an attorney. The investigation should zero in on when, where and under what circumstances the LW&T was discussed and signed…as well as who was present. Consideration of the length of time between that discussion and actual execution could be germane, as well.
When reviewing medical records, we should pay particular attention to nurse’s notes. Nurses refer to the patient’s mental state by using the term, “Oriented X3.” This is medical jargon indicating that the patient is aware of his/her surroundings and knows who they are, where they are and some suggestion of time coherence: day of week, month of year, etc. Anything less than Oriented X3 conveys suspicion that the patient may not at that point in time have been competent to execute a legal document. Timing plays an important part in the evaluation of medical records.
When suspected testamentary competence is the issue, family and friends and any other personal contacts, such as hair dressers, deliverymen, plumbers, neighbors and home caregivers should be interviewed. An investigation into what was going on in the testator’s life in the weeks and months leading up to the making of the new LW&T is essential. These interviews enable us to evaluate testamentary capacity, as well as identifying any undue influence by someone close to the testator. This is especially relevant when the devisee in the new LW&T is the hired caregiver with exclusive and controlling access over the testator. Undue influence is not the sole purview of non-family members, however. Indeed, it is not uncommon for some family members, themselves, to try and alter the testator’s heretofore true wishes through personal pressure or guile.
Here are some obvious telltale flags. Dramatic changes in the testator’s handwriting compared to earlier samples may suggest physical/mental deterioration. A short length of time between the execution of the LW&T and death of the testator can be an indicator, as well. While neither of the foregoing is absolute proof of fraud or interference; taken with other indicators either could bolster that argument. If, however, we can prove there has been imposed isolation of the testator by a controlling “gatekeeper” with no reason to exclude contact with loving family members, a case of manipulation and coercion may exist. Again, this can be shown via interviews with friends, family members and acquaintances that have been withheld from the testator. Some fraudsters are so bold as to actually forge the testator’s signature onto the LW&T, themselves. In that case, hiring a handwriting expert would be appropriate.
As in other kinds of investigations, the legal investigator consults with counsel and conducts interviews of potential witnesses, obtaining sworn statements along the way.
Concerned family members would be well advised to avoid theses problems by having background checks on caregivers and rotating family contact with their aged loved ones.
Of course there are times, for whatever personal reason, when a testator rightly wishes to make a new LW&T, with nothing unusual or suspect in that decision. Given the potential fallout attendant to major changes in the testator’s wishes, it is advisable for counsel to openly videotape the discussion prior to the execution of the new LW&T to include clear evidence that the testator is competent and is not a victim of undue influence, as well as the signing of the Will, itself.