| Lecture 6 |
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6.0 Wills: Capacity/Contest Maryland Estates and Trusts Article § 4-101 provides that: "Any person may make a will if he is 18 years of age or older, and legally competent to make a will." This definition does not specific what constitutes legal competency. Maryland, like most states, follows the common law rule to determine legal testamentary capacity: "Whether a testator had sufficient mental capacity is determined by a consideration of his external acts and appearances. It must appear that at the time of making the Will he had a full understanding of the nature of the business in which he was engaged; a recollection of the property of which he intended to dispose and the persons to whom he meant to give it, and the relative claims of the different persons who were or should have been the objects of his bounty." Philip L. Sykes, Contest of Wills in Maryland § 61 (1941), quoted in Sellers v. Qualls, 206 Md. 58, 66 (1954). Prior to the revision of the testamentary laws in 1969, Maryland statutory law stated that a person had testamentary capacity if such person was "of sound and disposing mind, and capable of making a valid deed or contract." How Wills Shall be Made and Their Effect, Laws of Maryland, 288-89 (1796), available at www.mdacrchives.state.md.us. That language was changed by the Henderson Commission to the language now found in § 4-101 ("legally competent to make a will"). The Henderson Commission decided that Maryland had developed a substantial body of decisional law setting forth the elements of legal competency and placing the legal competency to make a contract and/or a gift is a higher standard than that to make a will. To restate the past language would have called into question that decisional language. This distinction is evident in various court decisions that have upheld wills when a deed and/or gift would have been set aside. See, e.g., Tyson v. Tyson, 37 Md. 567 (1873); Oliver v. Hays, 121 Md. App. 292 (1998); Lee v. Lee, 337 So. 2nd 713 (Miss. 1976); In Re Estate of Sorenson, 274 N.W.2nd 694 (Wis. 1979). A similar policy consideration informs the different rules that have developed under Maryland law with respect to challenges of gifts and wills based on undue influence. If the recipient of the gift has a confidential relationship with the donor, the lifetime transfer shifts the burden to the donee to show the fairness and reasonableness of the transaction. Indeed, the donee must establish by "clear and convincing evidence" that there was no abuse of the confidence. Upman v. Clarke, 359 Md. 32 (2000). The rule regarding an attack on a will is very different. The fact of a confidential relationship simply is one element of the proof of the exercise of undue influence and does not shift the burden of proof. Id. The policy basis for the two different rules reflects the necessity of protecting individuals from access to their assets while living. After death, of course, this policy consideration no longer exists. By requiring that the testator be "legally competent to make a will" rather than being "capable of making a valid deed or contract," the present Estates and Trusts Article accurately codifies decisional law of Maryland. 6.2 External Indicia of Capacity As noted, whether a testator has the requisite capacity must be determined by consideration of external acts. One case illustrating the bias against finding a lack of capacity is Sellers v. Qualls, 206 Md. 58, 66 (1954). In that case, the court stressed that there is no extraordinary mental capacity for making a will required by the law. Mere eccentricity is not enough to void a will and the eccentricities evident in the Sellers case did not rise to a level of incapacity. These eccentricities were described by the court in detail: "...the effects of diseases (diabetes) from which she suffered; her rather frequent falls both indoors and outside, her rummaging through a garbage dump, which she permitted to be established on her place (and on which she sometimes fell), and eating moldy bread and other food which she retrieved from it; once eating food which she had vomited; eating food given her by hucksters for her chickens; eating large quantities of cheese, liverwurst, braunschweiger or bacon, regardless of dietary restrictions; licking her plate; making unfounded accusations of theft against a tenant, against her sister, Mrs. Sellers, and against others; hitting Mrs. Sellers with a saucer at some unspecified date in 1950; making unfounded allegations of attempts to poison her; hiding money in odd places; laughing, crying or talking to herself and seeming nervous or upset; and on one occasion wanting to put roomers out of her house and then letting them return almost immediately." Sellers, 206 Md. at 64. The court concluded that her eating habits were "an odd and extreme form of miserliness; but miserliness is not necessarily the hallmark of insanity, and is more likely to indicate the reverse." Id. at 65-66. The Sellers case and others show that it is difficult to attack capacity without expert testimony and it is likely that such expert testimony must be provided by someone who examined the testator. Sellers illustrates the presumption under the law that every person is sane and has the capacity to make a valid will. The burden is on the caveators to show lack of such capacity. See Ingalls v. Mount Oak Methodist Church Cemetery, 244 Md. 243, 260 (1966). Setting aside a will because it was a product of undue influence on the testator rests on the premise that the undue influence is to such a degree that the testator is robbed of his or her free agency: "Undue influence has also been a much litigated question. To warrant a finding that it invalidates a will, it must be shown that there existed 'that degree of importunity which deprives a testator of his free agency, which is such as he is too weak to resist, and will render the instrument not his free and unconstrained act'." Sellers, 206 Md. at 70 (citation omitted). There is no bright line test to determine existence of undue influence. Certain factors, however, have been found by the Maryland Court of Appeals as "characteristics" of undue influence: 1. "The benefactor and the beneficiary are involved in a relationship of confidence and trust; 2. The will contains substantial benefit to the beneficiary; 3. The beneficiary caused or assisted in effecting execution of the will; 4. There was an opportunity to exercise influence; 5. The will contains an unnatural disposition; 6. The bequests constitute a change from a former will; and 7. The testator was highly susceptible to the undue influence." As mentioned, the "relationship of confidence and trust" is one piece of evidence to establish undue influence in a will contest. The rule for an inter vivos gift, on the other hand, is that the existence of a confidential relationship shifts the burden of proof to the donee of the gift: "In some relationships, such as attorney-client or trustee-beneficiary, a confidential relationship is, indeed, presumed as a matter of law. Otherwise, and particularly in family relationships, such as parent-child and husband-wife, the existence of a confidential relationship is an issue of fact and not to be presumed as a matter of law." Upman, 359 Md. at 42. Upman v. Clarke involved a revocable trust which had the decedent as initial trustee and the Clarkes as successor trustees and remaindermen. The issue was whether the creation of the revocable trust was inter vivos or testamentary. The court held that, when resolving issues of undue influence and the revocable trust, one should follow the testamentary rules rather than inter vivos rules where the donees had not disposed of any of the assets of the trust to themselves or exercised substantial control over those assets to the detriment to the grantor of the trust: "Whether an instrument of this kind [where assets were used for the benefit of someone other than the grantor] is to be regarded as testamentary or inter vivos may depend on how it is, in fact, implemented." Id. at 48. In Figgins v. Cochrane, 403 Md. 392 (2008), the Court held that a gratuitous transfer to the agent under a durable power of attorney was the result of undue influence. In that case, the agent failed to rebut the presumption of undue influence that arose because of the confidential relationship.
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