A will that does not reflect the true intent and free will of the person making it (the “testator”) is not valid. One familiar illustration of this basic principle is the requirement that the testator have the requisite mental (“testamentary”) capacity to do so. Another all-too-common concern arises where the testator, often elderly and with reduced mental and physical capacity, is coerced into making or changing a will so as to disproportionately favor the coercer (called “undue influence”). Similarly, a will’s beneficiary may have convinced the testator to make a will favoring that person by deceit, such as by lying to the testator about something a sibling did in order to get him disinherited (called “fraud in the inducement”).
But what happens when a beneficiary deceives the testator in good faith—that is, based on a genuine but mistaken belief? For instance, suppose Son is caring for Mom in her final days, when she is home and receiving hospice care. Daughter goes to visit Mom one day, and Mom in her delirium says that Son tried to “kill” her by giving her the wrong dose of her medication. After Mom dies, Daughter (who never trusted Son anyway) tells Grandfather that Son killed Mom—and Daughter actually believes it. Grandfather believes it too. Based on the false information and belief, Grandfather writes Son out of his will. Son learns of his disinheritance for the first when Grandfather dies and challenges the will as procured by Daughter’s “fraud.” Who wins?
In Re Dand’s Estate—a classic case of both fraud and undue influence—is a good place to start. The case involved a dispute between the daughters of Janet Dand: on one side, Jennie and Myrtle; on the other, Mabel. For many years, Janet had expressed the intention to treat all four of her daughters equally in her estate planning, including in a will executed in 1941. But starting in 1942, daughter Mabel commenced a course of conduct that ultimately changed that.
Among other things, Mabel told her mother that Jennie (whom the mother had relied upon for business advice for 35 years and who managed the family’s ranch in Oregon) had obtained control over certain of the family’s properties in Seattle and had mismanaged or failed to account for money generated from the Oregon ranch. Mabel also told their mother that Jennie had sided with Myrtle in having “insanity proceedings” against the fourth daughter, Marion.
In early 1943, Mabel (described as “physically strong in appearance and of a domineering nature“) forced Myrtle to move out of their mother’s home, physically attacked and threatened to kill her, and endeavored to it alienate their mother from her. After that, Mabel lived with her mother and had full charge of the household until she died. During this time, the mother Janet had no opportunity to discuss her will with an outside advisor or put any changes into effect due to her blindness, age, and dependence on Mabel.
Shortly after kicking Myrtle out and assuming full charge, Mabel insisted that her mother fire her long-time attorney. Mabel then took her mother to another attorney to prepare another will—this one leaving only a token share of the estate to Jennie and Myrtle. Mabel, who “completely controlled [Janet’s] movements and access information,” kept the new will a secret from Jennie and Myrtle until after their mother had died. Janet passed away in 1950, leaving a sizable estate.
Mabel tried to enforce the 1943 will, and Jennie and Myrtle contested it. At trial, “[t]he evidence include[d] accusations of theft, alleged confiscation of property, an insanity charge against one of the sisters, a legal action of eviction from the family home against another, a charge of attempted poisoning, excessive drinking, personal fights, neighbors calling the police to the Dand home, an alleged attack with a hammer, locked doors, prowling at night, alleged striking of decedent by Mabel and John, and general family discord.” The trial court invalidated the 1943 will.
The facts of In Re Dand’s Estate are egregious and, one hopes, rare. That said, it is not clear that Mabel procured her mother’s 1943 will by fraud. The two theories—fraud and undue influence—are distinct. Whereas undue influence effectively overrides the testator’s intent, with fraud “the will is actually the free and voluntary act of the testator and expresses his wishes at the time, but it is subject to attack on the ground that his disposition of the estate was based upon false data as the result of fraudulent representations made by or on behalf of person or persons benefiting from his will as made.” And for a representation to be “fraudulent,” the person making it must know it is false.
It is not clear that Mabel made statements to her mother that were both false and known to her to be false. It may have been true—or Mabel may have honestly believed—that Jennie had taken control over certain properties, failed to properly account for income, or agreed with Myrtle that their sister should be committed. The trial court apparently did not address this point, finding merely that Mabel had “made false representations” about her sisters to their mother, “which were believed by [the mother] and had a controlling influence over her” at the time she made her will.
The trial court’s finding conflates the issues of fraud and undue influence, failing to fully address the elements of fraud and emphasizing instead the “controlling influence” the false statements had on the mother. Nor did the Supreme Court address this point on review; rather, it concluded that the evidence did not clearly show the trial court’s findings were wrong and noted that the facts also established undue influence.
In the hypothetical situation posed above, unlike In Re Dand’s Estate, there are no facts suggesting that the testator (Grandfather) was unduly influenced by Daughter to disinherit Son; the only theory available to Son would be fraud. But under the rule that fraudulent “statements must be false and must be known to be so by the person making them,” the will described above is not necessarily invalid—even though made based on false information. And unlike Mabel in In Re Dand’s Estate (of whom the trial judge remarked, “I would not leave her on any point on which she was contradicted by other evidence, whether direct or circumstantial”), there is nothing in the facts of the hypothetical to indicate that Daughter did not actually believe that Son had tried to end their mother’s life prematurely. On a strict fraud theory, Son might have no recourse.
This result may not comport with what many of us would deem fair. And it may be that additional facts would show that Daughter actually knew that Son had not tried to kill their mother. But the elements of fraudulent inducement are not necessarily satisfied merely because a beneficiary gives the testator false information, even if the testator relies on it in making her will.
–Miles A. Yanick