Recent Developments in Washington Regarding Wills, Trusts, and Estates

A Washington state court ruled that a sizable gift to a church in a decedent’s will was not the product of undue influence.

Church Law and Tax1999-09-01

Wills, Trusts, and Eestates

Key point. A gift to a church contained in a decedent’s will may be invalidated if the church “unduly influenced” the decedent in making the gift.

Key point. A non-attorney who assists a church member in drafting a will containing a gift to the church may be guilty of engaging in the unauthorized practice of law. This may jeopardize the validity of the gift to the church.

A Washington state court ruled that a sizable gift to a church in a decedent’s will was not the product of undue influence. It is common for church members to leave gifts to their church in a will. In some cases, family members object to these gifts and seek to void them by claiming that the church “unduly influenced” the member who made the gift. In some cases, church members or employees who are not attorneys assist members in drafting wills, and this represents another basis for challenging the legal validity of a will. The Washington court addressed both of these issues, and its conclusions will provide helpful guidance to church leaders.

A devout church member (“Mary”) who was retired and unmarried was diagnosed to be suffering from terminal cancer. She was scheduled to have surgery, followed by outpatient treatment as part of an experimental cancer program. On the evening before her surgery, Mary told a friend (“Judy”) that “I am not afraid to die, but I’m afraid of all the things I have to do before I die, like make a will.” Judy offered to call an attorney the next day. On the day of the surgery, Judy called her attorney, who was unable to prepare a will that day. He suggested that Judy purchase a “will kit” from a stationery store. Judy went to an Office Depot store and purchased a kit. Mary read the instructions that came with the kit and began discussing her desires with Judy. The day after the surgery, Judy retyped the language from the will kit onto her home computer, and inserted the information Mary had given her. Over the next couple of days, Mary made a few minor revisions to the document and then signed a final version in the presence of three witnesses. A few days later, Mary told some friends that she had just prepared her will, and that most of her estate would go “to the kingdom, for the Lord’s work.” She also confided that some of her family members might not be happy with her decisions. The friends later testified that Mary, though weak, was strong-willed and resolute. The will left a portion of the estate to family members, but the bulk of the estate went to her church and a parachurch ministry operated by Judy and her husband.

Mary died a few weeks after she signed her will. Her will was admitted to probate, and it was immediately challenged by a brother who claimed that the will was invalid for two reasons: (1) it was the product of fraud and undue influence, and (2) Judy engaged in the unauthorized practice of law in drafting the will.

Undue Influence

The court began its opinion by noting:

A will procured by undue influence is invalid. Undue influence must be proven by the contestants of a will, using clear, cogent, and convincing evidence. Influence becomes undue only when it overcomes the will of the testator, when the act of making the will is the result of such coercion that free agency is destroyed. Not every influence exerted over a person can be characterized as undue influence. Generally, influence exerted by giving advice, arguments, persuasions, solicitations, suggestions or entreaties is not considered undue unless it be so importunate, persistent or coercive and operates to subdue and subordinate the will of the testator and take away his or her freedom of action.

The court noted that the following factors are considered in deciding whether or not undue influence occurred: (1) did a beneficiary of the will occupy a fiduciary or confidential relationship with the donor; (2) did the beneficiary actively participate in the preparation of the will; (3) did the beneficiary receive an unusually or unnaturally large part of the estate; (4) the age of the donor; (5) the physical and mental health of the donor; (6) the nature of the relationship between the donor and beneficiary; (7) the opportunity for exerting undue influence; and (8) the naturalness of the gift. The court concluded that the brother had failed to prove by “clear, cogent, and convincing evidence” that Mary’s will had been the product of undue influence. The court characterized Mary as “a generous woman, prone to intense involvement” with her church and various other religious ministries. The court acknowledged that Judy and her husband took Mary into their home and cared for her while she was ill, and showed her many acts of kindness, but “exerted no undue influence over the disposition contained in her will.”

Unauthorized Practice of Law

The court noted that the unauthorized practice of law includes “legal advice and counsel and preparation of legal instruments by which legal rights and obligations are established.” It concluded that Judy’s actions “in selecting a will kit, discussing the distribution of assets and whether it was fair, obtaining the inventory of investments, typing the will, and arranging for the signing and witnessing of the will constituted the unauthorized practice of law.” The court also noted that the rules regulating the conduct of lawyers apply to laypersons who engage in the practice of law. Since lawyers who prepare a will for a client are barred from designating themselves as beneficiaries, the same was true of Judy. As a result, the court voided the gift to the ministry operated by Judy and her husband. However, the court upheld the validity of the rest of the will, including the gift to Mary’s church.

Application. This case illustrates a couple of important points.

(1) Undue influence. Family members occasionally challenge gifts to churches by elderly or infirm relatives. In many of these cases, family members assert that the church unduly influenced their relative into making the gift. This case illustrates the factors that the courts generally consider in deciding whether or not undue influence occurred. These factors provide church leaders with a useful checklist to consider in evaluating the possibility of an undue influence claim. In general, the risk of undue influence is all but eliminated in the case of gifts by mentally competent church members, regardless of age, who used an attorney (who was not a member of the church) to draft their will.

(2) Unauthorized practice of law. This case illustrates another important point. It may be tempting for churches to purchase one of the many “kits” that are available in office supply stores and bookstores to assist members in preparing their wills. To the extent such wills contain gifts to the church, they are subject to challenge. In re Estate of Marks, 957 P.2d 235 (Wash. App. 1998). [Undue Influence]

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