Saturday, October 24, 2009
Nebraska Supreme Court scolds attorney who handled a deceased's revised estate plans on eve of her death for not acting independently from the deceased's son whom the Supreme Court found to have exercised undue influence over her. In re Estate of Hedke, S-08-980, 278 Neb. 727. Supreme Court Justice William Connolly reverses finding from the District Court of no undue influence when he found likely collusion between deceased's son and his personal attorney who took over deceased mother's estate planning and drafted a will and trust that benefited the son over the mother's daughter who lived in Arizona. Glad to see the Supreme Court ruling against children who decide to stay on the farm so that the child who moved out to a warm weather state could get a fair break. Also even though the mother and son lived in a sparsely populated area of the state, the Court suggests that they should go to greater lengths to find the lawyer who did the mother's first will instead of using the lawyer the son used for other legal work. Charles and Rogers also failed to provide Leona with information that would have permitted her to compare her new estate plan with her previous intentions in her earlier will. Rogers’ billing statements and Charles’ testimony showed that Charles was involved in the planning of Leona’s new estate plan. Yet, he admitted that he did not explain to Leona that her new estate plan would effectively disinherit Dolores. Rogers told Leona that her medical expenses could deplete her cash assets if she lived a long time. But he did not discuss the money in her accounts at that time. Most important, neither Charles nor Rogers informed Leona that Charles had found her old will and that there were substantial differences. Nor did Leona have independent legal advice from an attorney solely dedicated to her interests. Despite her age, her infirmity, and allegations of Charles’ theft, Rogers did not attempt to determine whether a conservatorship might be in Leona’s best interests. He admitted that he did not explain to Leona that Dolores believed Charles was misappropriating her assets. And, at trial, Charles admitted that that he had used trust funds for his benefit without authorization. We note that Rogers now represents Charles in this appeal. He argued Charles’ case before this court. Rogers also failed to independently verify Leona’s competency by asking her questions about her assets or speaking to her physician to determine if a guardianship or conservatorship was necessary. To the contrary, he successfully continued the competency hearing scheduled for December 15, 2004, until January 12, 2005, after Leona had executed new estate plan documents. Although Leona had told Rogers that she wanted to divide her property as her father had and that she did not know where her earlier will was, he did not verify that the differences in the new will represented her wishes. On this record, Rogers’ testimony that Leona was not mentally impaired rings hollow. The evidence was sufficient to support a judgment for Dolores if unrebutted. The evidence clearly showed that Leona was subject to Charles’ undue influence and that he had the opportunity to exercise such influence. The court’s finding that Charles had engaged in self-dealing while he was Leona’s attorney in fact and trustee established his disposition to exercise such influence. Finally, even if Leona could have understood that she was disinheriting Dolores, the evidence showed that she would not have done so but for Charles’ ability to turn Leona against Dolores.