Wills, Trusts and Estates – Part 1

Church Law and Tax 1989-07-01 Recent Developments Wills, Trusts, and Estates Richard R. Hammar, J.D.,

Church Law and Tax 1989-07-01 Recent Developments

Wills, Trusts, and Estates

A Louisiana appeals court upheld the validity of a will that left a decedent’s estate to her minister. Here are the facts. The decedent died in 1986 at the age of 86. As early as 1979, she began exhibiting behavior which led her doctor to conclude that she was suffering from Alzheimer’s disease. By 1981, she had trouble recognizing close friends and relatives, her conversations became repetitive, and she became prone to emotional outbursts and temper tantrums. In 1979, a minister began transporting the decedent to and from church. By 1982, she offered to give her property to him (she made similar offers to others who did favors for her). In 1983, the minister took the decedent to an attorney’s office in order to have a will drafted leaving him her estate. The attorney had known the decedent for many years, and had drafted a previous will for her in 1975. He questioned her as to whether she understood that she was revoking her previous will and was leaving her entire estate to the minister. At one point he stated, “this [minister] is not a member of your family, do you understand that you have a right to give your possessions to whomever you wish, but you’re under no threat or anything?” The decedent became upset with the attorney’s questions, and the will was prepared and signed. Following the decedent’s death in 1986, the minister introduced the will to probate. A relative of the decedent challenged the will on the following grounds: (1) the decedent lacked the capacity to make a will (in 1983) because of mental incompetence; and (2) a state law invalidated will provisions leaving a gift to a minister if the will was drafted during the decedent’s “last illness” and the minister “attended” the decedent during that illness. The state appeals court ruled in favor of the minister. It observed that a will may successfully be challenged on the basis of mental incompetence only if “clear and convincing evidence” of incompetency exists. While acknowledging that some evidence of incompetency existed in this case, it failed to amount to “clear and convincing evidence.” The court was especially impressed with the fact that the decedent’s attorney had testified that he felt that she was competent at the time she executed her will in 1983. The decedent certainly was becoming more forgetful by 1983, the court acknowledged, but this fact alone did not constitute clear and convincing evidence of incompetency. Similarly, the court rejected the claim that state law prohibited the gift to the minister, since the will had not been executed during the decedent’s “last illness.” Between 1983 and shortly before her death in 1986, the decedent was not chronically ill. However, had the decedent “made the will during her final hospitalization a different result might obtain.” This case reveals the difficulty that is typically encountered in attempting to invalidate a will on the basis of mental incompetency or “undue influence.” The “clear and convincing evidence” standard is recognized by many states, and often bars relatives from successfully challenging a will leaving all or part of an estate to a minister (or more commonly to a church or other charity). Succession of Mack, 535 So.2d 461 (La. App. 1988).

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