Building an Undue Influence Case and Contesting a Will
Many potential clients walk in the door seeking to contest a will. They expect attorneys to know from the outset what a winner their case is because of the story they tell. Often, the reality is much different. Undue influence cases must be developed and supported by facts.
Before undertaking any case, we typically limit our retainer to gathering facts. That fact-finding process assists the client and us to understand that the likelihood of success in all undue influence cases, typically the absence of witnesses to the actions of the party exerting the pressure, is factually challenging. But that does not mean that supporting evidence cannot be helpful. If the case warrants it due to the size of the estate in question, consider hiring an experienced private investigator to assist in developing facts. That person can obtain signed statements from any witnesses as to what the decedent was doing around the time period of the execution of the will or the transferring documents. A private detective may be able to elicit facts as to the decedent's behavior, medical status etc. at the relevant time periods.
If there is no money to hire a private detective, then compile a list of potential witnesses with names and addresses and phone numbers. Consider long term friends, the hairdresser or barber, the banker who the decedent dealt with, the waitress/waiter at the diner or restaurant the decedent frequented. These types of individuals will usually have beneficial information just based on communications and observations made.
As a client, you should gather as much information and as many records as possible concerning the deceased. Make a list of the medical providers with names, addresses and phone numbers. Put together a list of hospitalizations within a two-year period of time from the date of the executed documents. This might include medical documents or financial records from the decedent. While many of these types of records are protected by privacy laws and may require a subpoena, if you have access to the decedent's home, those records may very well be accessible. In nothing else, explanation of benefits statements will give the attorney value information for records to subpoena once the case is started. Even notes on a handwritten calendar sometimes provide valuable information.
Make a list of suspicious circumstances that you observed with as much information as to dates and times and events that took place. Giving an attorney specific instances of your observations, although generally circumstantial, may show a pattern of the influencer's actions in making the decedent more dependant, isolated or limiting access.
Assemble whatever demonstrative evidence you may have, such as photos, home videos, cards, emails, handwritten letters or notes, etc. to try to demonstrate a before and after situation. Handwritten notes (especially if it looks like the terms were dictated to the decedent) are helpful.
All of this will assist the attorney in evaluating the undue influence case you want to present and provide the initial basis for filing an undue influence case. With that information in hand, the attorney will be able to use the discovery rules and his or her expertise in will contests to develop a winning trial strategy.
If you think you have a will contest case, you should contact an experienced probate litigation attorney. The attorneys at Weiss, Tom & Trapanese, LLC will assist you in formulating a litigation plan.