Probate & Trust Law Section Conference Manual ... - Minnesota CLE

decedent’s execution of a financial power of attorney, which gave
granddaughter and her husband control over decedent’s affairs and
property. Granddaughter’s husband then used this power of attorney to
write two checks to himself: one for $100,000 and another for $150,000.
Granddaughter also began isolating decedent from the rest of the family.
In 2002, decedent executed a new will and revocable trust agreement that
gave granddaughter and her husband control over decedent’s assets and
estate. The 2002 will and trust agreement were drafted based solely on
input from granddaughter’s husband. When decedent met with the
granddaughter’s attorneys to discuss his estate plan, decedent indicated
that he wanted to provide for his wife, but also stated that whatever
granddaughter and her husband agreed upon is what he wanted to do.
Based on the foregoing evidence, the Georgia Supreme Court concluded
that sufficient evidence existed for the jury to conclude that a confidential
relationship existed between decedent and granddaughter and
granddaughter’s husband and that granddaughter and her husband took an
active role in the planning, preparation, and execution of the 2002 will and
trust such that their will was being substituted for that of decedent’s will in
the creation of the documents. Therefore, the evidence was sufficient for a
jury to conclude that these documents were the product of undue
influence.
2. Watermann v. Eleanor E. Fitzpatrick Revocable Living Trust, 369
S.W.3d 69 (Mo. Ct. App. 2012). The settlor’s mental competency was
highly material to the issue of whether she was unduly influenced by
her son and his wife when the settlor was preparing her estate plan.
The settlor died survived by her daughter and her sons. Prior to her death,
the settlor executed a will that left all her assets in equal shares per stirpes
to her four living children, and she appointed one son as her personal
representative. She also executed two beneficiary deeds to real property to
be divided among her four children, in equal shares. Ten years later, she
sent a letter to a bank to remove her daughter as a beneficiary of her CD.
The settlor also met with an attorney to revise her trust agreement to
provide that one of the real properties subject to a beneficiary deed would
be distributed only to her sons, and not to her daughter. The attorney
testified that he did not believe that the settlor was under any undue
influence. On appeal, the court held that the settlor’s mental and physical
condition was “highly material” to the issue of undue influence, and that
the fact that the settlor revised her estate plan to omit her daughter was
supported by ample evidence that the settlor had a strained relationship
with her daughter.
3. Edwards v. Gillis, 146 Cal. Rptr. 3d 256 (Cal. Ct. App. 2012). A
survival clause in a trust agreement does not require the trustee to
administer the trust in a manner different from that of a reasonable
prudent trustee. The decedent executed a revocable trust agreement
which, upon her death, distributed her entire estate equally between her
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