Background. A pastor (Pastor Jon) and his wife stayed at a hotel on several occasions that was owned by an elderly woman (Ellen), and a friendship developed. Ellen began visiting Pastor Jon and his wife in their home, and often attended Pastor Jon's church.
Pastor Jon claimed that Ellen asked him to help her write a will, and so he purchased a software package capable of producing legal documents. Ellen came to Pastor Jon's office at the church to draft the will. Pastor Jon described the procedure as follows:
I had purchased the law program either the day before she called or that morning, installing it on the computer, and pulled up will forms. It asked questions. I asked her what it asked, and I typed in the information. I just said, what do you want to do here? She'd tell me, I'd type it in, and printed it out. She carried it home and that was the last I heard about the will.
The will listed Pastor Jon's church as a beneficiary, and appointed him executor of the estate. Ellen executed the will at a bank. There were three witnesses. Pastor Jon was not present at the execution of the will, and he did not know any of the witnesses.
Following Ellen's death, her will was submitted for probate. Some of her heirs challenged the validity of the will on two grounds: (1) The will was procured as a result of Pastor Jon's "undue influence," and (2) the will was prepared as the result of Pastor Jon's unauthorized practice of law, and was therefore invalid. The trial court ruled in favor of the heirs, and declared the will to be invalid. It concluded:
Pastor Jon engaged in the unauthorized practice of law when he prepared the will which was offered for probate. A confidential relationship existed between Ellen and Pastor Jon; and a presumption of undue influence applies to the preparation of the will which Pastor Jon failed to rebut by clear and convincing evidence.
Pastor Jon appealed.
The court's ruling. The appeals court rejected both of the heirs' grounds for invalidating the will.
The appeals court stressed that the doctrine of undue influence "is applicable only where there is a confidential relationship with the testator whereby one party is able to dominate and exercise undue influence over the testator." The court concluded that the heirs failed to prove that Pastor Jon was able to "dominate and exercise undue influence" over Ellen, and so the doctrine of undue influence did not operate to invalidate the will. It concluded:
While there is evidence supporting the heirs' assertion that Pastor Jon had the ability to exercise dominion and control over the decedent, there is additional evidence supporting his assertion that there was no confidential relationship. Pastor Jon testified that the decedent was independent and strong-willed, and that [another person] was decedent's pastor …. According to Pastor Jon, the decedent told him how to fill in the blanks provided by the will software kit, and he only agreed to help her after she asked him several times. He testified that he advised her to tell her family about the new will, and the decedent waited almost two months before executing the document at a bank, before witnesses [unknown] to Pastor Jon …. Pastor Jon pointed out that he lived in Alabama and the decedent lived in Tennessee, and the distance diminished his ability to exercise any dominion and control over her.
unauthorized practice of law
The heirs claimed that Pastor Jon engaged in the unauthorized practice of law by helping Ellen draft her will, and that this "constituted an independent basis for rendering the will a nullity and void both under the applicable law and as a matter of public policy." The court disagreed: "There is no requirement making the involvement of an attorney an essential condition to the validity of a will. Even assuming that Pastor Jon engaged in the unauthorized practice of law by helping the decedent to draft her will, this would not affect the validity of the purported will."
Relevance to church treasurers. This case is relevant for two reasons.
1. If the recipient of a gift "unduly influenced" the donor into making the gift, the donor may have the gift canceled. This rule applies both to direct gifts made during one's lifetime and to gifts contained in documents (such as wills) which take effect at death. Family members occasionally challenge gifts to churches by elderly or infirm relatives on the ground that a pastor or other church representative unduly influenced their relative into making the gift.
Undue influence is more than persuasion or suggestion. It connotes total dominion and control over the mind of another. As one court noted, "undue influence is that influence which, by force, coercion or overpersuasion destroys the free agency" of another.
Undue influence generally must be inferred from the circumstances surrounding a gift, since it seldom can be proven directly. Circumstances commonly considered in deciding if a donor was unduly influenced in the making of a gift include the following:
- whether the gift was the product of hasty action
- whether the gift was concealed from others
- whether the person or organization benefited by the gift was active in securing it
- whether the gift was consistent or inconsistent with prior declarations and planning of the donor
- whether the gift was reasonable rather than unnatural in view of the donor's circumstances, attitudes, and family
- the donor's age, physical condition, and mental health
- whether a confidential relationship existed between the donor and the recipient of the gift
- whether the donor had independent legal advice
Most courts have held that undue influence must be proven by "clear and convincing" or "clear and satisfactory" evidence. Proof by a mere preponderance of the evidence will not suffice.
As this case illustrates, it is often difficult for family members to prove undue influence. The court rejected the heirs' contention that the pastor was able to "dominate and exercise undue influence" over Ellen. In particular, it noted that Ellen was "independent and strong-willed"; that Pastor Jon was not her pastor; that Ellen told Pastor Jon how to fill in the blanks provided by the will software kit, and he only agreed to help her after she asked him several times; that Pastor Jon advised Ellen to tell her family about the will; and, that Pastor Jon lived in Alabama and Ellen lived in Tennessee.
2. The court refused to invalidate the will on the basis of Pastor Jon's "unauthorized practice of law" in purchasing a "will kit" which he used to assist Ellen in drafting her will.
Reducing the Risk of Undue Influence
Many wills leaving gifts to churches and other charities have been challenged by disinherited heirs on the basis of undue influence. Church leaders who learn that an elderly or infirm person is considering leaving a portion of his or her estate to the church can reduce the possibility of undue influence by ensuring that the person obtains independent legal advice in drafting the will or trust. Ideally, the attorney should not be a member of the same church.
In re Estate of Brevard, 213 S.W.3d 298 (Tenn. App. 2006)