In re The Trust and Estate of Melter (Division 3, March 20, 2012), is somewhat of a crazy case that might interest you if you care at all about (1) challenges to wills and inter vivos gifts or (2) standards of review, burdens of proof, and presumptions more generally.
First of all, the facts of the case are interesting/depressing in a soap opera kind of way. The dispute is between two sons (William and John) regarding the estate of their deceased mother (Virginia). The case is a bit complicated since it includes five wills: four testamentary wills and one guy named Will. But we’ll just call him William, which means there are only four wills to deal with. It just makes things easier.
A summary of the relevant facts: At the outset, Virginia has for a long time had a will (“Will 1”) that essentially gives her estate equally to both William and John. As she gets older and less able to care for herself, she starts taking steps to move closer to William so that he can care for her. During that period, when Virginia needs assistance, William secretly induces Virginia to make a new will (“Will 2”) that replaces Will 1 and gives essentially all of Virginia’s estate to William. William does not tell John that Virginia has extinguished Will 1 or that William gets everything in the new Will 2. Time goes by and, for various reasons, Virginia decides not to move closer to William, but to instead move in with John. As part of Virginia’s move, John asks William for Virginia’s legal papers. William delays, makes excuses, and never sends the papers. So John remains ignorant of Will 2. But because William never sent the papers, John also doesn’t have Will 1, so John helps Virginia put together a new will (“Will 3”) that, once again, divides things up pretty evenly between John and William.
Then things get ugly. After much effort, John finally obtains a copy of Will 2. He’s not happy (obviously). He tells Virginia about Will 2 and – perhaps with John’s influence or perhaps with his assistance – Virginia then executes yet another will (“Will 4”) which disinherits William and gives everything to John. Moreover, during the remainder of Virginia’s life, John effects various inter vivos transfers from Virginia to himself which greatly diminish Virginia’s estate.
After Virginia dies, William challenges the validity of Will 4 and the inter vivos transfers to John (again, obviously).
Now, this is where things get legally (as opposed to factually) interesting. Okay, maybe “interesting” is not the right word. Messy?
The Court first addresses which challenge should be considered first – the challenge to the inter vivos transfers or the challenge to Will 4. William wants to challenge the inter vivos transfers because, since the transfers were from Virginia to John while John had a confidential/fiduciary relationship with Virginia, the burden of persuasion would be on John to show that the transfers were valid. On the other hand, John wants the challenge to Will 4 to be evaluated first, because on the will challenge William would have the burden of persuasion. And if William’s challenge to Will 4 fails, then the challenge to the inter vivos transfers is moot, since invalidation of the inter vivos transfers would result in the transferred property becoming part of Virginia’s estate…. which by Will 4 would go to John anyway. So that doesn’t do William any good. All that matters is Will 4. The Court gets that, so the Court just looks at the validity of Will 4.
And it’s a mess. The Court notes that a will can be “disregarded when a will contestant presents clear, cogent, and convincing evidence that the will was the product of undue influence.” (emphasis added). According to that standard, the burden of persuasion is on William, and it is high. However, the Court goes on to state that “when a will is alleged to be the product of undue influence, certain circumstances may, in and of themselves, raise suspicion or concern requiring countervailing evidence by the proponent of the will.” That’s the Court of Appeals’s language. It’s unclear what if any import that language has regarding the burden on William, since a finder of fact may always have suspicions or concerns regarding the ultimate fact at issue. But in support of the above-quoted language, the Court cites to Dean v. Jordan, in which the Supreme Court held not only that certain circumstances may raise a “suspicion” or a “concern” of undue influence, but that certain circumstances may “raise a presumption of fraud or undue influence and, in the absence of rebuttal evidence, may even be sufficient to overthrow the will.”
That presumption, however, does not appear to mean anything, because it does not shift the burden of persuasion to John. Rather, according to the Court of Appeals, all that John needs to do is come forward with some evidence that Will 4 was not the product of undue influence, regardless of how believable or probative that evidence is, and then the burden goes right back to William who, without the benefit of the presumption, must prove actual undue influence by clear, cogent, and convincing evidence (“CCCE”). So that should be sufficiently confusing.
Anyway, the Court of Appeals goes on to review each of the individually challenged factual findings from the trial court. And because the standard of proof in a will contest is CCCE, the Court of Appeals subjects each individual factual finding to a heightened “highly probable” substantial evidence review. Accordingly, to meet the Court of Appeals’s standard, William must not only prove undue influence by CCCE, but each fact that makes up his path toward the ultimate issue must itself be proved by a heightened standard. That seems a bit too stringent.
After concluding that the trial court’s challenged factual findings were not sufficiently supported, the Court of Appeals turns to the trial court’s ultimate finding of undue influence. Since a finding of undue influence is, according to the Court of Appeals, a mixed question of law and fact, it reviews that conclusion de novo and ultimately concludes that the finding cannot be supported on the record. The Court of Appeals therefore reverses the trial court’s decision and remands with instructions to enter judgment in favor of John.
This result seems strange. While the Court of Appeals overturned many of the trial court’s factual findings, it did not overturn any of the factual findings that would have supported the presumption of fraud or undue influence. So the initial application of the presumption could easily have been affirmed. Of course, to rebut the presumption all John had to do was come forward with evidence. But the trial court heard John’s evidence and found John to be not credible. It seems to me that such a rejection of John’s evidence, which was not overturned by the Court of Appeals, should be sufficient to maintain the presumption. But the Court of Appeals disagreed.
In a concurring opinion, Judge Sweeney appears to agree that the case law in this area is a bit of a mess and that it confuses issues of burden of persuasion and burden of production. However, he takes the case law as he finds it and therefore signs on with the majority’s result. The concurring opinion is definitely worth a read, if for no other reason than he outlines some of the problems with the case law in a much more succinct manner than I have done here. Although, if you’ve read this far, I suppose it’s too late for succinctness. Sorry.