Failures Regarding Undue Influence

 

This brief analysis refers to the case of Ellsworth v Huffstatler (2016) that is discussed in our previous blog titled “Coins and the Offended Widow.” To best appreciate the following analysis, read this previous blog.  (Hover over the title with your cursor and click.)

Ellsworth teaches us at least two important lessons about estate planning.

Undue Influence is Extraordinarily Difficult to Prove. The Ellsworth court got it exactly right. To prove undue influence, you practically need a video of someone putting a gun to the head of a benefactor and forcing them to sign some document. That is undue influence: a gun-to-the-head standard. Courts are very reluctant to accept accusations by a self-interested party that a benefactor was unduly influenced to disinherit them.

With that said, is there any question in the mind of any rational person reading Ellsworth that Barbara Ellsworth was influenced by her daughter Terry? No. The evidence cited strongly suggests Terry was a strong influence in her mother’s life. But did Terry unduly influence her mother? This is a question that is almost impossible to answer definitively, especially in the law.

One can easily understand why someone could believe that Terry was poisoning the mind of her mother. But the evidence suggested that despite this poisoning, Barbara still knew what she was doing and wanted to do it (disinherit her husband’s children). Barbara was influenced, likely even strongly influenced by Terry, but legally there was no evidence Barbara was forced to do what she did. Her own willpower was not forcibly overwhelmed to disinherit Elmer’s children. In a strictly legal interpretation of the term, the court interpreted the law exactly right. And the law on this point is that undue influence is extraordinarily difficult to prove.

The Real Problem Was the Attorney. The real problem in Ellsworth is never mentioned in the case at all. The real problem was the attorney who drafted the original 1991 Ellsworth trust.

One of the numerous problems with the 1991 attorney is that he probably did not have any experience in probate litigation. That is, the 1991 attorney was unfamiliar with how easy it is for a benefactor to be unduly influenced in reality, and how difficult it is to prove undue influence legally.

An attorney who understands these brutal facts, and who is honest and diligent, can in fact prevent the surprises of undue influence. But this requires more than ordinary communication with clients—and their beneficiaries. This requires thoughtful anticipation of the surprises, and careful documents.

The attorney who prepared the 1991 trust for Elmer and Barbara Ellsworth could only have been a typical document-mill attorney who had no concept of undue-influence and how it could undermine the Ellsworth’s estate planning. The attorney’s failure to anticipate and prevent this common surprise utimately resulted in expensive, protracted litigation.

Does anyone rationally imagine that Elmer Ellsworth wanted his own children completely disinherited after his death? Shame on the lazy, document-mill attorney who did not competently ensure the desires of both Elmer and Barbara Ellsworth were honored–despite what surprises may occur.