Elder Law FAX -- November 14, 2005

Will Invalidated for Undue Influence Despite Testator's "Testamentary Capacity"
An individual may have "testamentary capacity" to execute a will, but the will may nonetheless be invalid because the will was the product of "undue influence" on the testator.

Maple Foster Park was born in 1913 in Columbia, Tennessee. She married Gene Park in 1945 and over the years, the couple became successful in business and accumulated a sizeable estate, by the 1990s, upwards of two million dollars.

Mr. and Mrs. Park did not have any children. In 1993, they executed reciprocal wills drafted by attorney T. Edward Lawwell. Each spouse left the estate to the other, and, upon the death of the surviving spouse, the bulk of the estate would be distributed among Mr. Park's family. (Mrs. Park had no close relatives and a close relationship to Mr. Park's family.)

In November 1995, Mrs. Park hired Linda Faye Cathey to help her on a part-time basis with errands and other household chores. In return for her services, Mrs. Park bought groceries and clothes for Mrs. Cathey and also paid some of Mrs. Cathey's bills. Leon Cathey, Mrs. Cathey's husband, began helping Ms. Park with yard work and odd jobs around her home.

Mr. Park died on February 8, 1996. One year later, on May 1, 1997, Ms. Park executed a new will prepared for her by Mr. Lawwell. While the new will was similar to the 1993 will, Mrs. Park devised $20,000 and all of her clothing to the Catheys. Shortly after she executed this new will, Mrs. Park asked Mr. Lawwell to draft a healthcare power of attorney empowering the Catheys to make emergency medical decisions for Mrs. Park until a family member could be contacted.

Over the next four years, until her death in July 2001, Mrs. Park's mental and physical condition continued to decline and she began to rely more heavily on Mrs. Cathey's assistance with her personal care and finances. Ms. Park executed a third will on February 2, 1998 that was substantially similar to her May 1, 1997 will.

In December 1998, Mrs. Park asked Mr. Lawwell to draft a codicil to her will increasing her bequest to the Catheys from $20,000 to $25,000. However, before Mr. Lawwell could prepare that codicil, Ms. Park called again requesting that the codicil be changed to increase the cash gift to the Catheys to $100,000 and to include a truck, a car, and a tractor in the bequest. She told Mr. Lawwell that this bequest should be contingent on the Catheys continuing to provide her care.

Attorney Lawwell arranged a personal meeting with Mrs. Park. He observed her declining condition and became concerned about her increasing reliance on the Catheys. Nonetheless, he drafted the requested codicil for Mrs. Park.

Mrs. Park was hospitalized several times in 1999. In December, he asked Mr. Lawwell to draft another change in her will, to bequeath the bulk of her estate to Mrs. Cathey. After questioning her further, Mr. Lawwell told Mrs. Park he intended to contact her financial advisor. Thereafter, despite his repeated phone calls to her, Mrs. Park never called Mr. Lawwell back.

Ms. Park was again hospitalized on January 13, 2000, because of chronic renal insufficiency and angina. She had several psychological consults during this hospital stay. On January 14, 2000, Mrs. Cathey contacted Tim Tisher, a lawyer practicing in Columbia, and asked him to prepare a new will for Mrs. Park. Mrs. Park was discharged from the hospital on January 15, 2000, and Mr. Tisher visited Ms. Park at her home three times over the next several days.

Mr. Tisher drafted a will for Mrs. Park that left all but $150,000 of her estate to Mrs. Cathey. She signed the will on January 25, 2000.

Mrs. Park died on July 12, 2001. Mr. Park's relatives challenged the will in probate court, which invalidated the January 2000 will on the grounds that Mrs. Park lacked testamentary capacity and was unduly influenced by Mrs. Cathey.

On appeal to the Tennessee Court of Appeals, Mrs. Cathey challenged the probate judge's conclusion that Mrs. Park's January 25, 2000 will was invalid. Writing for the appeals court, Justice William Koch, Jr., agreed with Mrs. Cathey's assertion that Mrs. Park indeed possessed sufficient testamentary capacity to execute a will. Every individual is presumed to have testamentary capacity, that is, the requisite knowledge of her act at the moment, the property she possesses, and the manner in which her property will be distributed.

As noted by Justice Koch, Mr. Park's family did not have sufficient proof that Mrs. Park lacked testamentary capacity.

But, wrote Justice Koch, there was overwhelming evidence that Mrs. Park was influenced unduly by Mrs. Cathey to make a new will leaving the bulk of her estate to Mrs. Cathey. Undue influence may be present and invalidate a will, notwithstanding that the testator obtained the independent counsel of an attorney.

As a result, the appeals court upheld the trial court's determination to admit for probate the February 1998 will and December 1998 codicil prepared by attorney Lawwell.

In re Estate of Maple Foster Park, November 14, 2005.

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