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Attorney Could Have Prevented Undue Influence

By Michael J. Tucciarone

The Massachusetts Appeals Court in In re Estate of Lacey (84 Mass. App. Ct. 1108, August 29, 2013) upholds a trial court’s finding of undue influence that could have been prevented by a loyal and diligent attorney.

Elizabeth B. Lacey was born on August 3, 1917, and at the time of her death in 2007 had no surviving spouse, children, or heirs. She had been closely involved with Joan R. McGuire’s family and regularly attended Joan’s family holidays, birthdays, weddings, barbecues, and other gatherings. She was even referred to as “Aunt Betty.” On September 26, 2000, Elizabeth executed her first will giving $20,000 to each of Joan’s daughters, $10,000 to Joan’s son, and the remainder to Joan.

In November of 2000, Elizabeth called William Hale, for help fixing her boiler. In the months that followed, William began bringing Elizabeth lunch almost daily and taking Elizabeth out to lunch on a weekly basis. In May of 2001, Elizabeth executed a second will that gave her entire estate to William and alternatively to his sons, George and William, Jr., whom Elizabeth had almost no virtual knowledge of.

Upon Elizabeth’s death on May 1, 2007, both Joan and William filed petitions for probate of each of the wills in their benefit. Subsequently, they both also filed objections to each other’s petitions. After trial, the probate judge approved and allowed Joan’s petition and dismissed William’s on the basis of undue influence. William appealed arguing that Joan McGuire’s family did not satisfy its burden of proving undue influence, and the appeals court here affirms.

To establish undue influence, the challenger must prove that (1) an unnatural disposition has been made, (2) by a person susceptible to undue influence, (3) by someone with an opportunity to exercise undue influence, and (4) who in fact has used that opportunity to get the will signed.

The evidence in this case supported such a finding, as Elizabeth made an alternative will providing that her estate might go to William’s sons without any meaningful contact with them and she completely excluded the McGuire family without explanation.

Sufficient evidence existed to establish Elizabeth’s susceptibility to undue influence, including her age of eighty-three, her frail, declining health, and her dependence upon others.

William’s frequent private lunches and visits with Elizabeth provided him with an opportunity for influence and Elizabeth’s attorney lacked the required undivided loyalty owed to his client as he was also William’s attorney and long-time friend. Further, when the attorney had a duty to be reasonably alert for indications of undue influence, he made little or no inquiry into Elizabeth’s reasons for changing her will. Thus Elizabeth would have been protected from the opportunity to undue influence if her attorney had been diligent and loyal to her alone.

If the attorney had met with Elizabeth alone to determine her reasons for changing her will, this trial may have been avoided. This is not always a foolproof method of avoiding undue influence, but it should be a standard of practice, especially when the client is drastically changing her will.

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