US Pharm. 2007;32(3):105-107.
This is a story made for soap operas. Sadly though, it is true, taken not from the TV guide but from a legal opinion.1 But if it has not happened yet, this story or one very similar will end up on a big or small screen somewhere. Unfortunately, it is not a rare or unique story. In fact, it seems to be rather common. It is a story about greed. The kind of raw gluttony that sickens you when you read about how loved ones in life become worst enemies at or near death. It also has a hint of a back story with a treacherous lawyer scheming to upset the balance a man tried to set up before he passed on, as he knew would happen soon.
Facts of the Case
In January 2004, a man at the far end of his life's journey was told he had terminal cancer, and there was no cure or treatment. So he did what most people do when they witness the face of death: He made a will. He did have some experience in this sense. His wife of over 25 years died in 2002. They had an arrangement that is very common among married couples: Whoever survives the other gets everything. Now, however, with the convenience of joint survivorship not available to him, it was his burden to decide how and to whom he wanted his wealth divided. People have different views about how and why these kinds of decisions are made. Adult children of a departed parent are often overwhelmed or shocked to find out how he or she decided to divvy things up, especially if they think their share is too small. That is just what happened here.
While this gentleman had lived a fairly normal life, there were some complications that made his testamentary will a bit difficult to sort out: He had two sets of adult children from two different marriages, and none of them were his own, at least biologically. When he married Wife #1, she already had a child from a different man. He adopted that child, and together they adopted more children. That marriage ended in divorce. In 1975, he married Wife #2 (she's the one who died in 2002). Her children, fathered by her first husband, ranged in age from 5 to 18 years at the time of the second marriage. He never adopted those children, and Wife #2 never tried to adopt the children from his first marriage. (By now, you should be gleaning some insight into the soap opera metaphor.) Do not ask what happened to Wife #1 or her relationship with her children; the opinion does not give us any more dirty laundry (even though the voyeurs in us ache to know). We do know, however, that the decedent (what lawyers call the dead people they are talking about) did have a relationship with both sets of children. (More about that in just a bit.) To keep the family tree somewhat clear, we will call the children from the first marriage, "Kids #1," and those from the second, "Kids #2." While Kids #1 and Kids #2 knew each other, and a few from each group even worked together in a business owned by the father, the children were not really close-knit or well integrated.
Dad, being the fair kind of guy that he was, drew up his will in February 2004, soon after getting the news of the terminal illness, and divided things pretty much into equal shares. One son from each Kids group was named as a co-executor, meaning they would jointly decide what to do with the minutiae of the man's affairs not addressed in the will. Here is the important part: More or less, all of the children were aware of how their father wanted things split up and who had been appointed to carry out his wishes.
As reasonable and unbiased as he tried to be to all of the children, there were a few arguable inequities, none of which should have resulted in the warfare that was about to erupt. One of the Kids #1 was given title to some land and the house that he lived in that was owned by the father. The testator (another word for the dead guy who is making the last will and testament) also gave his interest in the business he owned to two children from Kids #1 and one of the children from Kids #2.
He also included what is called an in terrorem clause. This Latin phrase literally means "in fear," and it is used in wills to scare a person into complying with the terms of the document. By way of illustration, let's say that you do not want your children to contest your wishes. You incorporate a phrase that says the child will forfeit any bequeaths he or she would take under the will if any child decides to challenge its validity.2 Doing so gives the testator a measure of "dead-hand control," where he gets to control the process of dividing his bounty from the grave. Even though the success of this strategy gets mixed marks from the judiciary, people still put these things in their wills, often on the advice of a lawyer.
As the father's illness grew worse, Kids #1 took care of him in his own home. While it is not clear when this happened, one of the Kids #1 had the father's financial power of attorney and wrote checks on his accounts and kept his books. One or more of this group would be present 24 hours each day. During this period, a couple of Kids #2 would come to see their father, but the relationship between the children was not particularly warm and fuzzy.
This is where the story gets nasty. Twelve days before he died in October 2004, Kids #1 got Dad to sign a different will naming two of those children as executors and removing the name of the son from Kids #2 who was appointed to this position in the earlier will. Here is the part about the seedy lawyer. Kids #1 went to an attorney and told him what they wanted in the will. Supposedly, they told the lawyer that the distribution plan they substituted into the later will was what Dad asked them to do. The lawyer did as directed and brought the document to the bedside to be executed by the father.3 One of the Kids #1 called a neighbor and two of his own cousins to serve as subscribing witnesses to the signing of the will. None of this was told to anyone from Kids #2, even though there were ample opportunities to do so.
It should be obvious that the division of property favored Kids #1 significantly at the expense of Kids #2, who were given only modest bequeaths. Imagine the surprise and consternation you might feel if you found out after you bury a parent that he or she changed everything that you thought was fair and impartial into being practically squeezed out of what you thought was your rightful and expected inheritance. You are not going to be a happy camper. But this kind of thing does happen, and it frequently involves one child taking on the responsibility of keeping a parent safe and well cared for. Many people who find themselves completely dependent on the help of the "good child" elect to reward that person with a larger slice of the wealth pie.
Here is how the legal wrangling got started and what happened. Kids #1 ran into a probate court with the October will and started preparations for carrying out its intended results. One piece of evidence they brought to show that Dad had a change of feelings as his days grew darker was the original February will torn in half.
Not so fast, said Kids #2. They insisted that the February will was the best evidence of their poor departed father's wishes. Soon the mud was slinging, and the divisive words were taunting and tearing the children into irreparable family units. Kids #2 claimed that Kids #1 subjected their father to undue influence and that at the time the October will was signed, the father lacked testamentary capacity.
This fighting cumulated with a six-day jury trial. The literal million dollar question for the jurors to decide was: Which will should be given full and final authority? The subscribing witnesses testified at trial that the father was lucid when he signed the October will. Kids #2 presented evidence that in the weeks prior to and after his execution of the October will, the father was (1) taking prescribed narcotic drugs, which had possible side effects of hallucination, disorientation, and impaired mental and physical performance; (2) taking an antidepressant that could cause confusion, impaired mental concentration, and hallucination; and (3) wearing a duragesic patch continuously and likely had increased levels of narcotics in his body due to his liver's decreased eliminative function brought about by the cancer. A pharmacology expert opined that a person with decreased liver function who took the level of pain medication reflected in the testator's medical, hospice, and pharmacy records two weeks prior to death "would not be rationally sane."1
A hospice worker who visited the father two days before he signed the October will noted in the hospice records that he had difficulty completing his sentences, was somewhat forgetful, and denied having siblings, despite the presence of his sister. A person who visited the testator the day he executed the October will testified that she saw one of the Kids #1 repeatedly administer medicine to the testator by means of an eye dropper, the method by which one of the narcotic drugs was administered, and described the father as "morphined up." There was also testimony that the terms of the October will were inconsistent with the testator's repeated statements to others that he wished to treat all his children equally.
At the conclusion of the trial, the jury returned a verdict in favor of Kids #2. The jury found that the October will was invalid and a product of undue influence by Kids #1 and that the father lacked the testamentary capacity needed to make the October will valid.
Kids #1 didn't like this result and appealed the decision to the Supreme Court of Georgia. According to this court, and under the statutes of that state, "Testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property." 4 Furthermore, "a will is not valid if anything destroys the testator's freedom of volition, such as undue influence whereby the will of another is substituted for the wishes of the testator."5 The court also stated that in light of the testator's physical condition and medicated status, a lesser degree of influence would be required to overcome his free will.6 Based on a review of the evidence, the court determined there was sufficient support to uphold the jury's verdict.
Do not think the outcome of this contest is at all common. Most of the time, courts spend a great deal of energy to facilitate the last wishes of the dead. Usually, a last will is presumed by judges to be the final will. But take note that the pharmacy records took on a pivotal role in the minds of the jurors. That was the one piece of objective evidence. This gentleman was consuming medications with more intense results because of liver dysfunction, which rendered him incapable to have the degree of rationality needed to alter prior declarations of how he wanted his capitol dispersed. After more than three years, likely very high attorney fees, and much emotional wrangling for all of the children, it looks like Dad finally got his wishes.
1. Lilard v. Owens, Slip Op No. SO6A2034 (January 8, 2007), Sup Ct. Georgia, 2007 Ga Lexis 15, 2007 Fulton County D Rep 91.
2. See: www.nolo.com/definition.cfm/Term/ E532EF64-1CB1-4D65A2C1400DE1A8746E/alpha/I/ (02/18/2007).
3. "Executed" may sound like a strange word to use just to mean someone "signed" a legal document. In the context of this case, it sounds like the dying man is signing his own death warrant.
4. OCGA @ 53-4-11 (a).
5. OCGA @ 53-4-12.
6. Cook v. Huff, 274 Ga. 186, 187 (552 SE2d 83) (2001).
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