Given the current and often predatory nature of modern personal relationships I thought this piece by my friend and colleague Robert Sewell of Davis Miles McGuire Gardner was interesting and timely, to say the least. Bob practices heavily in the area of probate litigation, which is where late or poorly drafted estate plans end-up, usually at the detriment of the estate. – Ike Devji
Nothing looks more suspicious, though quite common, than the dying man who makes a deathbed will. It is the stuff of Hollywood. Picture the elderly man summoning his lawyer to his deathbed. The lawyer drafts the will as the invalid dictates the contents. The invalid declares that his entire estate shall pass to his wicked mistress—a young looker and manipulative gold digger. The scarlet woman places the pen in the man’s hand and firmly demands, “sign it.” The will is signed. The priest reads the testator’s last rites as his soul leaves his body. His faithful children are now destitute.
Of course, a lawsuit will follow. The faithful children accuse the mistress (or new wife) of unduly influencing their father and demanding, in court, that the judge refuse the will.
After all, why would a loving father not provide for his children at death? Had the mistress not used her seductive powers and lies to poison the mind of their father, the children would enjoy a profitable future.
Unfortunately for the children, a woman’s seduction alone is not enough to invalidate a will.
In the case of Parrisella v. Fotopulos, 111 Ariz. 4, 6, 522 P.2d 1081, 1083 (Ariz. 1974), the Arizona Supreme Court defines “undue influence” as follows:
Conduct by which a person unduly influences a testator in executing a will, when that person through his power over the mind of the testator makes the latter’s desires conform to his own, thereby overmastering the volition of the testator.
The court reasoned that a woman’s seductive power does meet this standard:
It is settled law of this state that [an] illicit relationship is not sufficient per se to warrant a conclusion of undue influence. And no presumption of undue influence arises merely from the fact that a man . . . makes a will in favor of his mistress.” Id. (citations omitted).
So, unlike in the movies, in real life, the wicked mistress just might win.
ABOUT OUR GUEST AUTHOR:
Robert Sewell is a partner at the law firm of Davis Miles McGuire Gardner in Phoenix, Arizona and practices primarily in the areas of Commercial Litigation, Probate Litigation and Real Estate Litigation. He has written on a variety or related issues. Mr. Sewell’s litigation experience involves cases in federal, state and administrative settings. He has also resolved disputes through mediation, arbitration, as well as bench and jury trials. Mr. Sewell has also worked as a professor of business law. You can contact him directly for help or through Ike Devji. http://www.davismiles.com/attorney/robert-n-sewell/