writing a CREAC structure legal analysis. (law class)

TO: Supervising Attorney

FROM: Henry Stapp

DATE: January 9, 2016

RE: Will of Jeremy Fisher—Undue Influence

ISSUE

Under Cambria law, can a will successfully be challenged on the basis of undue influence when: the deceased was using a powerful pain medication; was frequently left alone with the individual(s) who would benefit from the new will; and where the new will strongly benefited the suspected individual(s)?

SHORT ANSWER

Likely yes. At the time of the second will was executed: (1) Jeremy was susceptible to undue influence because he was physically weak and frequently took powerful pain medication that made him groggy; (2) there were many opportunities to exert undue influence because Edward Brooks and other agents of Piedmont University were constantly present during Jeremy’s final weeks; (3) Piedmont University’s representatives had the disposition to exert influence because there were strong personal and financial incentives to do so; and (4) the new will revoked an earlier will that favored his family.

FACTS

Jeremy Fisher had a net worth of approximately ten million dollars at the time of his death, mostly from swimming endorsement contracts he received after the Olympics. In September of 2009, Jeremy wrote a will that left 90% of his estate to his brother, Andrew Fisher. Following the announcement of his diagnosis with terminal brain cancer in late 2012, Jeremy’s swim coach, Edward Brooks, contacted him and began staying at Jeremy’s house. Brooks said that he was taking care of him and keeping him company.

Brooks was Jeremy’s former swim coach at Piedmont University (PU). When Brooks was unable to stay with Jeremy, he would send student-athletes from the PU swim program to be with him. At the time, the PU athletic department was suffering from budget cuts and the swim program was struggling financially. Brooks brought Jeremy materials on leaving money to the university and had discussed the possibility with him on multiple occasions. Brooks also invited the Athletic Director and an Associate Dean of Alumni and Development to visit Jeremy.

Although Jeremy appeared alert until shortly before his death, he began deteriorating physically in March of 2013. The change limited his mobility and confined Jeremy his room. Jeremy also took pain medication that made him groggy and caused him to sleep most of the time. At one point, Brooks prevented Andrew and his family from seeing Jeremy, saying he was in no shape for visitors. After that point, Jeremy was never allowed to visit alone with his family. Following his death, Brooks and Andrew discovered a handwritten will. The new will was drastically different, leaving approximately 98% of his estate to PU and less than 2% to Jeremy’s family. Jeremy’s brother would like to know if he can successfully challenge the new will on the basis of undue influence.

DISCUSSION

Undue influence is defined as “fraudulent influence over the mind and will of another to the extent that the professed action is not freely done but is in truth the act of the one who procures the result.” N.C. Gen Stat. § 24-103(a) (2011). Undue influence consists of four elements: “(1) A person who is subject to influence; (2) An opportunity to exert influence; (3) A disposition to exert influence; and (4) a result indicating undue influence.” N.C. Gen Stat. § 24-103(b) (2011).

The Supreme Court of Cambria has identified seven factors that help determine whether the four essential elements have been met (also known as the Andrews factors):

(1) Old age and physical and mental weakness of the person executing the will;

(2) That the person signing the will is in the home of the beneficiary and subject to his constant association and supervision;

(3) That others have little or no opportunity to see him;

(4) That the will is different and revokes a prior will;

(5) That it is made in favor of one with whom there are no ties of blood;

(6) That it disinherits the deceased’s family;

(7) That the beneficiary has procured its execution.

In re Andrews, 299 N.C. 52, 55 (2002). Other factors may be considered on a case by case basis. In re Will of McDonald, 150 N.C. App. 220, 228 (2003). Furthermore, not every factor needs to be present. Campbell, 155 N.C. App. 448, 456 (2009). Proof of undue influence is usually made up of multiple facts, almost always incapable of establishing the claim alone, that together permit an inference of influence. Jones, 362 N.C. 569 at 576. If the evidence permits a reasonable mind to infer that the will is the result of undue influence, “the case must be submitted to the jury for its decision.” Id. The McDonald court was clear that “circumstantial evidence may be considered,” and that “the more adroit and cunning the person exercising the influence, the more difficult it is to detect . . . .” McDonald, 156 N.C. App. at 229. Therefore, direct evidence, while helpful, is not necessary to prove a case of undue influence.

These seven factors can be grouped into four broader categories that correspond to the four elements. First, any physical and mental weaknesses of the deceased may indicate that a person is subject to influence. Second, regular supervision or exclusion of others from visitation can indicate an opportunity to exert influence. Third, financial incentives of the beneficiaries may show a disposition to exert undue influence. Finally, revocation of prior wills and a lack of family ties of the beneficiaries can be evidence of undue influence. This memo addresses whether these factors, when applied to the current case, contribute to the reasonable inference of undue influence.

(1) Mental and Physical Weakness

Jeremy’s mental and physical condition would support a reasonable inference of undue influence. The mental condition of the deceased is arguably the factor on which courts put the most emphasis. Campbell, 155 N.C. App. at 457. In Jones, the deceased had brain cancer that made him weak and confused prior to his death. Jones, 362 N.C. 569 at 579. Furthermore, he took pain medication and experienced frequent exhaustion. Id. The court held that these facts could allow a reasonable inference of undue influence. Id.

The deceased’s physical condition can also be used to establish the first Andrews factor, regardless of mental condition. Seagraves v. Seagraves, 206 N.C. App 333, 344 (2010). In Seagraves, the deceased had medical problems, tired easily, and was not “able to get around.” Id. The court held that the first Andrews factor weighed in favor of undue influence, despite the deceased’s mental clarity. Id.

Like the deceased in Jones, Jeremy was on powerful pain medication that frequently left him groggy and caused him to sleep a lot. Furthermore, according to Andrew’s affidavit, Jeremy began deteriorating physically beginning in March. In fact, Jeremy was frequently tired and stayed in his room most of the time. Brooks also stayed by Jeremy’s side, even during visits with family.

Jeremy’s physical weakness and lack of mobility also supports the first factor, as it did with the deceased in Seagraves. Although Jeremy never suffered from chronic confusion, the bouts of medically induced grogginess and tiredness, combined with a lack of mobility, make the first Andrews factor weigh in favor of undue influence.

(2) Constant Supervision and Exclusion of Others

The constant presence of Brooks and other agents of PU would likely contribute to a reasonable inference of undue influence. The second and third Andrews factors address whether the deceased was subject to the constant association and supervision of the accused party and whether others had little opportunity to see him. In McDonald, the beneficiary was present at all meetings with the deceased, and was “wholly involved in [the deceased’s] affairs,” even writing checks from deceased’s account. McDonald, 156 N.C. App. at 230. Furthermore, the beneficiary in McDonald had attempted to exclude a close friend from visiting the deceased. Id. at 225. Similarly in Jones, the beneficiary monitored personal visits and telephone conversations, and blocked access between the deceased and his attorney by screening calls. Jones 362 N.C. 569 at 579. On the other hand, in Seagraves one instance of denied access to the deceased was outweighed by the otherwise “unfettered access to visit with and speak to them.” Seagraves, 206 N.C. App. 333 at 346.

Like the beneficiary in McDonald, Brooks completely inserted himself into Jeremy’s life following the public announcement of Jeremy’s illness. Brooks was a constant presence in Jeremy’s life, even arranging for swim team members to stay with Jeremy when he could not. Brooks also turned Andrew and his family away during one visit in March, saying that Jeremy “was in no shape for visitors.” Like the attorney in Jones, Andrew claims that his family was “never able to be alone with [Jeremy].” However, unlike the beneficiary in Seagraves, Brooks did not screen or otherwise block phone calls. Regardless, the constant supervision could be considered evidence of the presence of undue influence.

(3) Beneficiary Incentives and Procurement of Execution

The evidence regarding the beneficiary’s incentives to exert influence would strongly contribute to a reasonable inference of the presence of undue influence. The disposition to exert influence corresponds to the seventh Andrews factor, which involves the beneficiary’s incentives to exert influence over the deceased. In Jones, the beneficiary was vocal about her displeasure with the original will, and stated her intent to have it changed to leave her everything. Jones, 362 N.C. 569 at 581. Similarly in Buck, the beneficiaries drove the deceased to a lawyer’s office and took part in the deceased’s conference with his attorney about changing his will. Matter of Will of Buck, 130 N.C. App. 408, 415 (1998).

Here, Brooks and the university officials all had strong personal and financial incentives to influence Jeremy’s will. First, Brooks was well aware of Jeremy’s substantial estate. He told Jeremy about ways to leave money to the university and talked to him about doing so multiple times. Second, Brooks admits that he would likely get a large raise as a result of a gift the size of Jeremy’s handwritten will. Finally, the Athletic Director and Associate Dean of Alumni and Development, who had no personal connection with Jeremy, had obvious professional incentives to fund the athletics department and procure donations to the university.

The swimmers that Brooks asked to stay with Jeremy also had multiple incentives to influence him. A gift of that size would ease the swim program’s current financial struggles. It would also strengthen the team by allowing them to update their swim facilities, attract more talented swimmers, and provide more individualized coaching. Most importantly, scholarship money, which most of the students who had visited Jeremy relied upon, was in danger of being cut. These strong incentives all provide additional evidence of undue influence.

(4) Revocation and Lack of Familial Ties

The fourth, fifth, and sixth Andrews factors—that the will revokes a prior will, that it is made in favor of one with no familial ties, and that it disinherits the deceased’s family—weigh in favor of undue influence and are clearly established in this case. The new will expressly revoked the earlier will and strongly favors PU instead of Jeremy’s family. Whereas Jeremy’s 2009 will left 90% of his multi-million dollar estate to his brother Andrew, and just 5% to PU, the new will left all but $150,000 of the estate to PU. Therefore, the new will was clearly made in favor of a non-family beneficiary and disinherits his immediate family. Beyond any doubt, these Andrews factors are satisfied and contribute substantially to a reasonable inference of the presence of undue influence.

CONCLUSION

Jeremy’s brother can likely challenge the will on the basis of undue influence. First, Jeremy’s mental and physical conditions could lead a reasonable person to conclude he was susceptible to undue influence. Second, Jeremy’s constant supervision from March until his death in June, as well as the unusual refusal to let Andrew and his children visit, demonstrate that Brooks and the PU officials had ample opportunity to exert influence. Third, the strong incentives for Brooks, the student-athletes, and the university officials to exert influence over Jeremy all support an inference that they had a disposition to do so. Finally, the new will revokes a prior will and disinherits his family in favor of an unrelated beneficiary.

4