Objective memorandum · 90 minutes
Predict whether a son's will contest for undue influence will succeed against a caregiver who arranged her client's new will. You have 90 minutes. To: Associate. Use the File and the Library only, then compare your draft with the rubric and the model answer below.
To: Associate. From: Gideon Achebe, Partner. Re: Estate of Harold Vance. Our client, Peter Vance, is Harold Vance's son. Harold died at 84, and his last will, signed eight months before he died, leaves everything to his home caregiver, Dawn Pritchard, and nothing to Peter or his sister. Please write an objective memorandum predicting (1) whether a presumption of undue influence arises and (2) whether the will is likely to be set aside. Use only the Library.
Harold's 2015 will left his estate, about $700,000, to his two children equally. Dawn Pritchard began working for him in 2021, after his wife died, and was in his house daily. In February, Dawn found a lawyer, Ellen Prosser, drove Harold to the office, and paid the retainer from Harold's checking account. Harold's children say Dawn discouraged visits and answered the phone at his house. Peter visited about once a month.
Met Harold alone for about 20 minutes. Dawn waited in the lobby. Harold said he wanted to leave everything to Dawn because she looked after him when his children did not. He was oriented, understood the size of his estate, and named his children when asked. I explained that his children would receive nothing. He said he understood. Will signed with two witnesses from my office. Dawn was not present at signing.
Dr. Naidoo, January: mild cognitive decline, oriented, capable of managing daily decisions with help. No diagnosis of dementia.
A will is invalid to the extent it was procured by undue influence, meaning influence that overpowered the testator's free will and substituted the will of another. The contestant has the burden of proof.
A presumption of undue influence arises when (1) the beneficiary had a confidential relationship with the testator, (2) the beneficiary actively participated in procuring the will, and (3) the beneficiary receives an unnatural or unusually large share. Opportunity or affection alone is not enough. Active participation includes choosing the lawyer, arranging the meeting, paying the fee, or being present when the will is prepared or signed. The presumption shifts to the beneficiary the burden of producing evidence to rebut it.
A gift to a long-time caregiver is not unnatural merely because it departs from an earlier will. The court compares the will to the testator's earlier plans and the relationships. The presumption may be rebutted by evidence of independent legal advice, where the lawyer met the testator alone, explained the consequences, and confirmed the testator's wishes, and by evidence that the testator understood the disposition. If the presumption is rebutted, the contestant must prove undue influence by a preponderance of the evidence.
Graders score a response against these criteria, and every one of them depends on using only the facts in the File and only the rules in the Library, so treat the list as a check for your draft after the first pass and again before you stop writing.
Next task: Rent withholding and the warranty of habitability. MPT document library