The Safe Harbor

For Your Legal Needs

Written By:  William F. Hoffmeyer, Esquire

This blog involves a case from which an appeal was taken from the probate of a will that was actually prepared by an attorney but signed in the attorney’s absence in the hospital in the presence of the sole beneficiary.

This particular case involved a will that was signed by the testator (for whom the will was created) and two witnesses. All of the signatures were properly notarized.

The various burdens of proof in a will contest shift between the proponent (the person supporting the validity of the will) and the contestant (the person seeking to invalidate a probated will on the grounds of either lack of testamentary capacity of the testator or undue influence exerted on the testator, or both). The contestant bears the burden of proof by clear and convincing evidence which is the highest evidentiary burden in civil trials.

The standard requires witnesses to be credible, the facts to be distinctly remembered, the details narrated exactly and in due order so as to be clear, direct and convincing. This enables a fact-finder (the judge) to come to a clear conviction, without hesitancy, of the truth of the precise facts at issue.

In the particular case which I have reviewed for this blog, the contestant’s witnesses included a person who did not see testator on the day the will was signed; another witness who was a friend and occasionally visited the testator at his home and testified that she “never” thought his mind was impaired; his son who visited the testator on occasion, did not have a very close relationship with him, was not there during the signing of the will and did not testify that his father lacked testamentary capacity; and the attorney who prepared the will but was not present at the execution of the will.  The attorney testified that he had many interactions with the testator in the weeks prior to the death of the testator and that the testator was not incompetent anytime during their interactions.

Because none of the witnesses, according to the judge, testified to testator’s lack of mental capacity and in fact, all testified that the testator never lost his mental capacity, the contestant did not meet her burden of proof and failed to prove that the testator lacked testamentary capacity when he executed the probated will.

With regard to the definition of “undue influence”, the court held that direct evidence of undue influence requires the contestant to prove “imprisonment of the mind or body, as well as fraud, or threats, or misrepresentations, or circumvention, or inordinate flattery,  or physical or moral coercion to such a degree as to prejudice the mind of the testator, to destroy his free agency and to operate as a present restraint upon him in the making of the will.

According to the Pennsylvania Supreme Court, a presumption of undue influence arises if (1) the contestant proves by clear and convincing evidence that the testator suffered from a weakened intellect at the time the will was executed (2) there was a person in a confidential relationship with the testator; and (3) the person in the confidential relationship received a substantial benefit under the challenged will.

If even one element of the above three requirements is missing, it has been held that the contestant failed to meet their burden.

Various decisions in a number of cases have held that “care and attention to the testator do not constitute undue influence, unless it is so concentrated as to intentionally overpower the testator’s independent judgment.  Relationship of blood and association do not amount to undue influence because legitimate family and social relations will naturally influence and affect the dispositive scheme, such results being natural and proper as long as they are not designed to overpower and dominate the testator.  Attempts to persuade or solicit the testator are often to be expected by family members and others who are close to the testator and do not constitute undue influence unless they restrain the testator’s mind.

WHAT IS VERY IMPORTANT, is that the testimony of the scrivener (the attorney) is always highly probative of the testator’s intellect. The Pennsylvania Supreme Court has observed in an opinion, “The draftsman of a will, especially if a lawyer, is always an important, and usually the most important, witness in a will contest case especially where the attorney has known the testator well for a long time and shows such circumstances of voluntary and intelligent action by the testator at the time of the execution of the will, his testimony makes a primary facie case that requires very strong evidence to offset the evidence of the contestant”.

Another case has held that the special experience of the scrivener in dealing with elderly persons has been noted as giving extra authority to an opinion as to capacity.

The attorneys at Hoffmeyer & Semmelman, LLC frequently visit persons who want a Will and/or Powers of Attorney and Living Wills either at their home, or, if they are in a hospital, at the hospital or at their residence in a retirement facility. Our attorneys always take a notary public and a legal assistant with them and will not permit any of those documents to be signed unless the attorney, the notary and the legal assistant are absolutely satisfied that the person signing them is totally competent to mentally understand the nature of what they are signing and express a specific  desire to sign them after they are reviewed with them In detail and they acknowledge complete understanding of that detail.