By Michael J. Tucciarone
The Massachusetts Appeals Court in In re Estate of Sharis (83 Mass. App. Ct. 839, March 20, 2013) upholds a trial court’s finding that a mother’s disinheritance of her daughters in favor of her grandson was the result of undue influence.
Born in 1916, Alice Sharis came to the United States from Turkey. She had three daughters with her first husband whom she divorced in 1959, and then married her second husband, Peter. After Alice’s grandchild from her first marriage, Richard Spinelli, separated from his wife in 2003 he asked Alice and Peter if he could move into their home. He remained there for the rest of their lives free of charge.
Over time Spinelli gained nearly complete control of Alice and Peter’s checking account. Alice even complained to family members that she did not know where her money or checks were. In 2007, Alice signed a durable power of attorney, prepared by Spinelli, taking immediate effect and granting him broad powers. Spinelli did not inform other family members that he had been signing checks on behalf of his grandparents, or of his additional powers.
In 2008, Spinelli met with an attorney and asked him to draft a will for his grandmother. The attorney, a corporate lawyer, spoke briefly with Alice by telephone but never met with her in person. The attorney then had an associate in his office draft the will.
The will was executed in the nursing home where Peter was a patient, without an attorney present. It distributed the bulk of Alice’s assets to her husband, Peter, and should he not survive her, to Spinelli. It also provided that her savings and checking accounts were to be distributed equally among her three daughters. After the will was executed, Spinelli opened an additional checking account in his name in trust for Peter and Alice, and between 2008 and 2010 he transferred $71,450 from the original checking account bequeathed to Alice’s daughters to the trust checking account in his name.
After Alice’s death, one of her daughters, Florence, successfully brought an action contesting the will on grounds of lack of testamentary capacity and undue influence. Spinelli appealed the trial court’s finding of undue influence, which is defined as any coercion, whether physical, mental or moral, which subverts the sound judgment and genuine desire of the individual. While the burden of proof for undue influence ordinarily rests with the party contesting the will, Spinelli’s role as fiduciary for his grandmother switches the burden to him to prove that the will was not a product of his undue influence.
Spinelli unsuccessfully contended that Alice had the advice of independent legal counsel and this fact alone mitigates undue influence as a matter of law. The appeals court finds that under the circumstances described above, the trial judge’s finding that Alice lacked the benefit of independent counsel is supported by the record and was clearly not erroneous.
It seems that Spinelli’s mistake here was to use an attorney not experienced in estate planning. We would hope that an experienced estate planner would have met with Mrs. Sharis alone to determine her wishes and competency. This is not always a foolproof method of avoiding undue influence, but it should be a standard of practice, especially when the client is disinheriting part of her family, no doubt inviting a challenge.
Michael J. Tucciarone is a law student at New England Law School and a law clerk with Margolis & Bloom.
