In re Sabol (NC App, 12-31-2020): Where Capacity Caveats Fail, Undue Influence Caveats Live On
In an unpublished opinion on New Year's Eve, the North Carolina Court issued a ruling on In re Sabol (opinion here, briefs here) regarding a caveat from Wake County. The opinion reminds readers of the difficulty of surviving summary judgment on capacity caveats but also the elusive, "subjective" nature of undue influence caveats (which often evade summary judgment due to their "heavily fact-specific inquiry").
Testator was literally a rocket scientist who worked for NASA. Testator and Wife had a long-term marriage with 3 children (A, B, C). Mirror “sweetheart” wills in 2004 left everything to each other, then the children. PR appointments were each other, then Child A.
Wife then dies.
In 2013 Child B procures a new will for Testator, who’s Will was drawn by an attorney (Attorney-I) who visited him at his assisted living facility. The 2013 Will cut out Child C extensively and benefited Child B extensively.
In 2015 Attorney-I visited to update the 2013 will in light of worsening family relationships, bringing with him an additional attorney (Attorney-II) and later testified that he anticipated the caveat and had potential conflict of interest concerns with Children A and B (who he had represented on other matters). Ultimately, Attorney-I’s draft of a new 2015 will was executed with Testator by Attorney-II and an Attorney-III. In effect, the 2015 will left everything (save $10 to Child C and $1 to Child A) to Child B, with a charity as the contingent beneficiary to Child B. The 2015 will was again signed in the assisted living apartment. Testator struggled physically to sign the 2015 will but eventually succeeded. Testator verified he had no other wills.
Testator died in January of 2016 and Child C admitted the 2015 will to probate 6 days later. A caveat based on the dual claims of (1) capacity and (2) undue influence soon followed.
At trial both claims were resolved in favor of propounder on summary judgment. Caveators appealed both claims. On appeal the North Carolina Court of Appeals reversed summary judgment as to undue influence.
The brief of Caveator/Appellant has some colorful facts (pages 9, 14) left out by the Court of Appeals which are recommended for the interested reader. The same brief reveals that Attorney-I sought to represent propounder in the caveat proceedings and was duly removed on the basis that he would be a material, necessary witness at trial (being the draftsman). Propounder/Appellee's brief contains its own notable facts showing the fractured state of the family (children visiting regularly and irregularly, bankruptcies, intergenerational loans, harsh words, etc.) which likely lend support to a disparate treatment of the children. The brief also makes the classic factual defense of undue influence: that the testator was "strong willed" (i.e., not susceptible to influence). Additionally, this brief makes good use of old case law when discussing In re Craven's Will (NC 1915) and its language defending a father's testamentary preference/protection of a daughter he is close with.
Interestingly, the Court did not address 1st Amendment concerns in the briefs (notably Caveator's reply brief) regarding a capacity argument raised related to the Testator's belief and support of Genesis II Church for Health and Healing (the contingent charitable beneficiary in the 2015 will). The issues bring to mind the related problem in some cases of the "insane delusion" test (check out this 2017 Notre Dame Law Review article on that).
1. Capacity: The court quickly dispensed with the capacity arguments (which basically were that testator was old, sick, sometimes confused, held eccentric beliefs, and failed in 2015 to recall his 2013 will), quoting In re Will of Priddy (NC App 2005): “It is not sufficient for a caveator to present only general testimony concerning testator’s deteriorating physical health and mental confusion … A caveator needs to present specific evidence” concerning the classic capacity elements tied to the actual moments when the will is executed (testator understanding of property, family, disposition, and the effect of the act of making a will when he signed it). “The presumption is that every individual has the requisite capacity to make a will[.]” In re Estate of Phillips (NC App 2016).
Also noteworthy is the classic court deference to the drafting attorney’s testimony regarding capacity at execution. As I have noted in other blogs, this is frequently the death note to a capacity claim.
2. Undue Influence: The Court held caveators should have survived summary judgment on undue influence since they set forth “evidence of a prima facie case of undue influence.” In re Will of Jones (NC App 2008). The Court cited the same case for the (litigiously lucrative) recitation that “undue influence is an inherently subjective term, and finding its existence thus requires engaging in a heavily fact-specific inquiry…Direct proof of undue influence is not necessary and is rarely available; circumstantial evidence may be considered.” The elements for undue influence remain the same as ever: (1) the testator must be susceptible to influence, (2) the bad actor must have an opportunity to exert influence, (3) the bad actor must have a disposition to exert influence, and (4) the resulting will must indicate undue influence. See In re Will of McDonald (NC App 2003). The “Andrews factors” set forth in In re Will of Andrews (NC 1980, see In re Will of Jones at p.14) inform these elements, though they are not all required. See also NC Civil Pattern Jury Instruction 860.20.
Undue influence (like all caveat claims) is essentially about testamentary intent: was the will “the product of the testator’s free and unconstrained act, [or is it] rather the result of overpowering influence.” In re Jones.
In reversing the trial court’s granting of summary judgment on the undue influence claim, the Court noted that several Andrews factors were in fact met: the 2015 will was different from and revokes a prior will; the 2015 will disinherited children; the testator was of old age and had mental weakness (*note the recycling of this evidence which almost never carries the day in a capacity claim, resurfacing as a valid Andrews factor for undue influence); caveators had limited access to Testator; the 2015 will was made in favor of a devisee without ties of blood (the charitable contingent beneficiary); and the propounder procured the will, usually (as in this case) by arranging the logistics with a law firm that had more of a client relationship with the propounder than the Testator.
The matter is remanded for trial on undue influence.
Disparate treatment of children breeds lawsuits
Retirement home executions can face scrutiny
Capacity caveats are long shots and often fail against attorney testimony
If you want to litigate the caveat, don't draft the will
Facts regarding capacity can “live on” in the undue influence claims, re Andrew Factors
“Inherently subjective” reality of undue influence may get you to the jury, but will it get you to a verdict? ... Stay tuned