Kendra L.

Thomas
kendrathomas@alumni.ufl.edu kendralthomas.wordpress.com

Writing Sample March 2, 2012 University of Missouri-Columbia This writing sample is a memorandum of law concerning a negotiation simulation under Missouri state authority. The following excerpt has been prepared for educational use and contains information about fictional characters as applied to analogous case law and statute, providing true and accurate state precedent for probate and estate-planning cases. It has been subsequently edited for style and brevity.

MEMORANDUM OF LAW TO: FROM: DATE: RE: Lande, J. Thomas, Kendra March 2, 2012 Putnam v. Putnam; Case #12345; Probate negotiation contested will Question Presented 1. Under Missouri law, will Dana Putnam prevail if unsuccessful negotiations between herself and her sibling, Janet Putnam, lead to litigation in a probate case concerning the will of their mother Lisa Putnam, when Janet may contest the will for undue influence or on testamentary capacity grounds? Brief Answer 1. Likely yes. Missouri case law provides precedent, which would foreseeably sway a court in favor of Danas position of a validly executed will free of undue influence. It should be noted as a result, however, that these probate proceedings present an unfortunate crisis for personal interests in maintaining a relationship between siblings subsequent to negotiation or litigation. Testatrix, Lisa Putnam, executed only one testamentary instrument following the death of her husband. Testamentary capacity, as provided by Missouri statute, requires that there is evidence of the testatrixs ability understand and process the ordinary affairs of life and property at the time of the signing, and is here satisfied. Dana will thus be entitled to the benefits of the inheritance outlined, setting aside unpleasant feelings that Lisa may have had about estranged daughter Janet. Neither does the amicable relationship between Lisa and Dana adequately or unduly influence the desire of the deceased to freely craft a will excluding her other daughter. Statement of Facts Prior to the death of Mrs. Lisa Putnams husband, Fred, in 2007, he arranged for execution of identical wills for he and Lisa. These wills provided that the entire estate would pass to the

surviving spouse, with terms that if the spouse pre-deceased the testator, the estate would be divided equally between daughters, Dana and Janet Putnam. When Fred Putnam died, Lisa took his entire estate. Lisa was subsequently diagnosed with cancer on April 4, 2009. She underwent radiation treatment for several months, which arrested the spread of the cancer, but did not completely eradicate it. In addition to cancer treatment, her physician, Dr. James Tyler, observed signs of depression and prescribed anti-depressant mediation, which Mrs. Putnam took until death. He noted some deterioration in her cognitive functioning (in addition to the depression), but noted it was consistent with aging, especially after shock. On October 15, 2009, Lisa Putnam signed a new will prepared by her attorney, Paul Lipscomb, which is the only other testamentary instrument she executed after the will that Fred arranged. Dana Putnam, one of Lisas two daughters, is concerned about her mothers will, which is apparently generous to Dana as compared to her sibling, Janet, who may want to contest the will for undue influence. Client interests include maintaining a relationship subsequent to negotiation or litigation proceedings. Discussion 1. Under Missouri law, will Dana Putnam prevail if unsuccessful negotiations between herself and her sibling Janet Putnam lead to litigation in a probate case concerning the will of their mother Lisa Putnam, when Janet may contest the will for undue influence or on testamentary capacity grounds? It is likely Dana Putnam will prevail. While these probate proceedings present an unfortunate crisis for personal interests in maintaining a relationship between siblings subsequent to negotiation or litigation, Missouri law provides a case on-point which in fact would sway a court in favor of Danas position of a validly executed will of sound mind, free of undue influence.

Undue Influence In Allee v. Ruby Scott Sigears Est., 182 S.W.3d 772 (Mo. App. W. Dist. 2006), pairs of siblings, 2 brothers and 2 sisters, argued over the validity of a will and deeds executed prior to the death of their mother, Ruby, who in the latter stage of her life progressively suffered from mental deterioration. Upon signing the will 3-years prior to her death, Ruby expressly included a clause removing her daughters from any right to inheritance, and remarked to her attorney that her reasoning included her displeasure at the poor treatment she received from them in her elderly years. Approximately 6 months later, Rubys condition deteriorated so severely that she was adjudicatively deemed incapacitated. The sisters argued the close relationship between their mother Ruby and their surviving brothers was evidence of undue influence and sought to have the will invalidated, with a previous various version of Rubys will to be alternatively enforced. The court here makes clear, quoting extensive case law, that undue influence means such influence as destroys the free choice of the person making the will. [] To break the will the evidence must show such influence as amounts to force, coercion or overpersuasion sufficient to destroy the free agency and will power of the testator. Morse v. Volz, 808 S.W.2d 424, 432 (Mo.App. W.D.1991) (internal citation omitted). Factors considered in determining the existence of undue influence in the making of a will include: (1) an unnatural disposition, (2) an onset of solicitude of the [testator] by the proponent, (3) a change in predetermined testamentary intent, (4) unusual circumstances surrounding the execution of the will, (5) hostile feelings of the beneficiary toward the expected recipients, (6) remarks of the beneficiary to the [testator] derogatory of contestants, (7) the source of the [testator's] property being such as to make the disposition to the beneficiary unlikely, and (8) recitals of the will itself indicates undue influence. Ruestman v. Ruestman, 111 S.W.3d 464, 479 (Mo.App. S.D.2003) (quoting Kaiser v. Pearl, 670 S.W.2d 915, 918 (Mo.App. E.D.1984)). The burden is on the plaintiff to prove undue influence. Id. at 478. Furthermore, [a] presumption of undue influence [only] arises [...] when

the evidence shows: (1) a fiduciary relationship existed between the testator and the beneficiary, (2) the beneficiary received a substantial bequest in the will, and (3) the beneficiary was active in procuring the execution of the will. Vancil v. Carpenter, 935 S.W.2d 42, 44 (Mo.App. W.D.1996). Here in Allee, surviving sister Mary and her niece and nephew, as plaintiffs, alleged that the close relationship brothers Jim and Bill had with Ruby in stark contrast to the hostile nature of the relationship between that of her mother and the sisters was a substantial factor in their omission, and several conversations about plans to omit the sisters from the will constituted undue influence. Contrastingly, the brothers contended such conversations never included direction on how to dispose of her estate. Furthermore, Rubys attorney testified that it was Ruby who directed him to omit her daughters, not a direction or suggestion by counsel. The court ultimately held that there was no evidence of undue influence, remarking that to set aside a deed [or will] on the basis of undue influence, there must be clear, cogent and convincing evidence of such influence. Allee v. Ruby Scott Sigears Est., 182 S.W.3d 772, 780-81 (Mo. App. W. Dist. 2006) (quoting Estate of Stanley, 655 S.W.2d 88, 91 (Mo.App. W.D. 1983)). Thus, it is likely in the case of siblings Dana and Janet that if Lisa Putnam executed a valid will being of sound mind, under Missouri law, Dana will be entitled to the benefits of the inheritance outlined, setting aside unpleasant feelings that Lisa may have had about Janet. Testamentary Capacity It is likely Dana Putnam will prevail, with Allee remaining the case on-point, on a challenge of testamentary capacity. Allee v. Ruby Scott Sigears Est., 182 S.W.3d 772 (Mo. App. W. Dist. 2006). Along with presenting a case for undue influence, supra, Ruby Sigears contesting daughters averred that Ruby was not of sound mind and lacked sufficient mental

capacity at the time she executed [either] the deeds or the will, such that she suffered from dementia and aggressive mental deterioration. Id at 775. In contrast to undue influence, however, [t]he proponent of a will has the burden of proof concerning testamentary capacity of the testator. Once the proponent makes a prima facie case showing due execution and attestation of the will as provided by statute and that the decedent was of sound and disposing mind when the will was signed, the contestants must then produce substantial evidence to overthrow the prima facie case and to prove that the testator lacked sufficient mental capacity. Hugenel v. Est. of Keller, 867 S.W.2d 298, 304-05 (Mo. App. S. Dist. 1993) (quoting Lewis v. McCullough, 413 S.W.2d at 504505). The burden of proof, however, remains with the proponent of the will throughout the case. Id. at 305 (citing Brug v. Manufacturers Bank & Trust Co., 461 S.W.2d 269, 276 (Mo. banc 1970). The court further engages in a outlining necessities for such a prima facie case, such that [i]n order to have testamentary capacity at the time a will is executed, the testator must: (1) understand the ordinary affairs of his life; (2) understand the nature and extent of his property; (3) know the persons who were the natural objects of the bounty; and (4) intelligently weigh and appreciate his natural obligations to those persons and know that he is giving his property to the persons mentioned in his will. No particular degree of mentality is required as long as the testator can adequately consider the requisite features. In re Estate of Hague, 894 S.W.2d 684, 688 (Mo.App. W.D.1995) (internal citation and original paragraph style omitted). Yet, even in such circumstances, the court notes, while [s]uch capacity must exist at the time the will is executed [] the right to dispose of property by will as the testator may choose is one that the law does not readily deny on the ground of lack of testamentary capacity. Allee v. Ruby Scott Sigears Est., 182 S.W.3d 772, 781 (Mo. App. W. Dist. 2006) (quoting Morse, 808 S.W.2d at 430 (internal citation omitted)). Thus, as with the claim of undue influence, the court again, citing extensive case law, rejects the sisters argument, holding that while their mothers condition was that of a mental

nature, her capacity to execute a will was incident to evidence of her ability understand and process information at the time of the signing. Likewise here in the case between siblings Dana and Janet, the facts of the case show that Lisa Putnams testamentary capacity was probably intact. Testimony from her physician confirms that while she was depressed, her functioning and understanding of life and her surroundings was not affected. Furthermore, Lisas attorney testifies that she understood the will she was to sign and did so with sound judgment. Conclusion It is likely that on both accords, regarding questions of undue influence and testamentary capacity, Lisa Putnam validly executed a will including inheritance for Dana and Janet Putnam therein. The division of the estate will likely during probate proceedings be in accordance with said will. END OF SAMPLE