Case: In re Estate of Barnes, No. 91488-5 (Jan 28, 2016).
When Mrs. Barnes passed away, it did not take long for her caretaker and her family to start fighting.
Even a fully competent person who leaves property to their caretaker runs the risk that a court will conclude they were under “undue influence.” (See In re Estate of Lint, 135 Wn.2d 518, 535, 957 P.2d 755 (1998)). If there was undue influence, the will can be invalidated. Id.
While a person trying to challenge a will needs to prove that the will is illegal by “clear, cogent, and convincing evidence,” this rule is severely weakened by the presumption of undue influence that arises under a certain suspicious set of facts. While the presumption alone will not invalidate the will, it can invalidate the will when combined with other evidence of undue influence, whether direct or circumstantial.
Does the beneficiary occupy a Fiduciary or Confidential Relation to the will-maker?
A caretaker will sometimes become the attorney-in-fact (have a power of attorney for) the person they are taking care of, notably to make it easier for them to write checks or otherwise help the will-maker deal with banks or other entities. Their attorney-in-fact is, by law, a fiduciary of the will-maker.
In Estate of Barnes, the caretaker had supplanted the will-maker’s niece as attorney-in-fact, and therefore was a fiduciary, a fact which weighed in favor of creating the presumption of undue influence.
Did the beneficiary actively participate in preparing or procuring the will?
The fact that a caretaker drives a person to their will-signing ceremony with the attorney will not, on its own, invalidate the will. But the kind of gossip and suspicion that can arise between caretaker and principal over the motives of others can drive a person to change their will and exclude those others, and when that sniping happens systemically, it begins to look like undue influence.
In Estate of Barnes, the trial court found that Barnes’ new will was drafted following Caretaker Wells’ “systematic manipulation of Barnes” that fanned Barnes’ anger toward the Rovas, nieces and nephews who would have been the beneficiaries under the old will.
Caretaker Wells suggested the Rovas had deliberately destroyed an address book of great sentimental value, that they had tried to “throw Ms. Barnes under the bus,” and that they wanted to put Barnes in a nursing home. Wells also told rental property tenants that the Rovas were “greedy villains” who intended to evict them in order to sell the land, develop the property, and become millionaires. Finally, Caretaker Wells changed Barnes’ long-distance calling plan, making it more difficult for family and friends to reach her.
While even well-meaning caretakers can fall into the trap of seeing everyone as out to get money no matter who it hurts, this kind of social violence can also be used deliberately by malicious caretakers to not only create a feedback loop of unnecessary worry and distress with the person they are supposed to be taking care of, but to poison that person’s relationship to others and to make that person more likely to change their will in a way that they would not if they were thinking clearly.
The trial court thus found that Caretaker Wells’ driving Barnes to the attorney was only the last in a very long line of acts leading to the will, and thus the beneficiary (Caretaker Barnes) had actively participated in preparing or procuring the will.
Result–Unusually or unnaturally large bequest
“Unusualness” can be measured by comparing any old wills with the new one, or by comparing the bequest to the caretaker with bequests to others. The new wills completely disinherited the Rovas, who had been alternate beneficiaries and then had been primary beneficiaries after the death of Barnes’ husband and daughter. Caretaker Wells and her husband, by contrast, had never even been named in a will and now received the entire estate.
When trying to decide whether the facts support a presumption of undue influence, several other factors beyond the three above are considered. Other factors include the age or condition of health and mental vigor of the pason making the will, the nature or degree of relationship between the testator and the beneficiary, the opportunity for exerting an undue influence, and the naturalness or unnaturalness of the will. Id., citing Dean, 194 Wash. 661.
Here, other factors present included physical limitations and some degree of cognitive impairment that made Barnes extremely vulnerable to undue influence. Another critical factor was the “unnaturalness” of the will, in that the Caretaker and her husband were fifty-one years younger than Barnes’, were unrelated to Barnes’, and had only become consistently involved with Barnes’ in the last few years of her life. Until these last few years, the Rovas, who were Barnes’ nieces and nephews, had shared a close relationship with Barnes and the trial court could not “conceive of Ms. Barnes disinheriting the [Rovas] and making this absolutely radical and unnatural change to her prior wills unless she was subjected to undue influence.”
The Supreme Court
The Supreme Court (reversing an intermediate appellate court) found that these facts, as they were laid out by the trial court, were enough to support the presumption of undue influence.
Although the intermediate appellate court had reversed the trial court’s findings, the Supreme Court reinstated them, holding on procedural grounds that the appellate court had erred by looking for facts supporting the caretaker’s position rather than making sure sufficient facts supported the conclusion reached by the court below. Put simply, the purpose of an appeal is not to retry the case in a new court; it is to make sure the first court didn’t make a legal mistake.
But ultimately, despite its procedural posture, Barnes will remain a good case for guidance on what kind of behavior will risk invalidating a senior’s bequest to her caretaker.