| Lecture 7 |
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7.0 Wills: Undue Influence/Fraud The attorney-client relationship is one example of a well-recognized confidential relationship. Under some circumstances such relationship would be fatal to an instrument leaving the attorney a bequest. Maryland Lawyer’s Rules of Professional Conduct Rule 1.8(c) instructs that: “[a] lawyer shall not solicit… a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client…” Even when the lawyer is related to the testator it may be bad practice to prepare the instrument if the lawyer or the lawyer's branch of the family is being favored as against other members of the family or branches of the family. See e.g., Lipper v. Weslow, 369 S.W.2d 698 (Tex. App. 1963) (indicating that the issue of undue influence would have been moot had the testatrix used an independent attorney to prepare her will). The American College of Trust and Estate Counsel’s commentary to MRPC Rule 1.8(c) pointedly states that: "the lawyer should exercise special care if a relative of either the lawyer or the lawyer's spouse proposes to make a gift that is disproportionally large in relation to gifts that the relative proposes to make to others who are equally related." ACTEC Commentaries on the Model Rules of Professional Conduct MRPC 1.8 (2nd ed. 1999). Rule 1.8(c) dictates an absolute prohibition on the lawyer preparing an instrument favoring the lawyer outside of the family setting. The ACTEC commentary makes a sensible extension of that prohibition: "[n]either the lawyer nor anyone associated with the lawyer should assist a client who is not closely related to the lawyer or to the lawyer's spouse to make a substantial gift to the lawyer or to the lawyer's spouse, children, parents or siblings." ACTEC Commentaries, supra. Presumably, a lawyer would need to refrain from not only preparing the instrument but also assisting the client in arriving at the decision. Numerous cases have supported disbarment or indefinite supervision of a lawyer drafting a will of a non-relative that names the lawyer or the lawyer's family member as a legatee. Atty. Griev. v. Brooke, 374 Md. 155 (2003); Atty. Griev. v. Stein, 373 Md. 531 (2003). See also Atty. Griev. v. Saridakas, 402 Md. 413 (2007), where having the will passed by the lawyer's office space sharer did not save sanctions from being imposed. A dissent by Wilner and Greene questioned why someone merely sharing space is not an independent attorney. At least one court has extended the ethical rule to cover non-lawyers acting in the role of a lawyer. In Re Estate of Marks, 957 P.2nd 235 (Wash. Ct. App. 1998), was an appeal on an undue influence case where no undue influence was found by the trial court. In that case, the testatrix had been hospitalized and was assisted by a friend who was closely involved with a church. The testatrix was scheduled for surgery and, reportedly, stated that she wanted to make sure that she had her affairs in order beforehand. A friend secured a will kit at Office Depot, read the instructions to the testatrix, and helped her complete the will. The will at issue left part of the estate to the friend and a large amount to the friend's church. Although in Marks it was held that undue influence could not be shown4, the court found that the will was the product of the unauthorized practice of law and therefore those provisions benefiting the friend were set aside. Ultimately the court decided that "the rules regulating the conduct of lawyers are applicable to lay people who engage in the practice of law." Id. at 241. As with other documents, a will may be the product of fraud if the testator is deceived into signing the will without understanding that the document is meant to be a will or if there is a provision in the will which is unknown to the testator. Dukeminier points to In re Estate of Carson, 184 Cal. 437 (Cal. 1920), as a "dramatic illustration" of part of the difficulty in determining what constitutes fraud and inducement of gaining a bequest in a will. Dukeminier, supra. In Carson, a man induced the testatrix to go through a "marriage ceremony" while knowingly married to another women. Thus, the ceremony was fraudulent. After living together for a year the testrix died and left the majority of her estate to her "husband". The issue to be decided was whether the bequest was a product of the fraud or a product of the intimate relationship that was valid regardless of the issue of the fraudulent marriage. The court in Carson pointed out the difficulties in determining the issue at hand. An easy case would be if the parties lived together in excess of twenty years, then it would be fairly likely that the bequest did not hinge on the supposed legal relationship with the "husband". Similarly, if it was a deathbed marriage followed by the will the fraud would be almost certainly related to the bequest. "Between these two extreme cases come those wherein it cannot be said that either one conclusion or the other is wholly unreasonable, and in those cases the determination of the fact is for the jury." Id. at 442.
The Restatement of Torts recognizes tortious interference with an expectancy. See Restatement (Second) of Torts § 766 (1979). This is action is separate and distinct from a will contest. In Maryland, this tort is barely recognized (or put another way, not yet dead). In short, a party must demonstrate that there is not an adequate remedy under equity before sustaining an action for tortious interference with an expectancy in Maryland courts. In Geduldig v. Posner, 129 Md. App. 490 (1999), the Court of Special Appeals was presented with an undue influence case that also contained a count of tortious interference with expected inheritance. In that case, the testatrix was videotaped while executing her will. The videotape included a psychiatrist asking the testatrix various questions to, presumably, demonstrate her competency in anticipation of a will contest. The caveators asserted undue influence and sued the favored children based on tortious interference with an expectancy. In Geduldig, the court decided that the only reason for the tort count in the lawsuit was to introduce the possibility of punitive damages in a case where punitive damages would not be available: "In [Kann v. Kann, 344 Md. 698 (1997)], the Court of Appeals refused to recognize a generic cause of action at law for breach of fiduciary duty. The issue was discussed, primarily, in the context of a right to jury trial. The Court of appeals observed that, historically, the supervision of trust was within the province of equitable courts, which included claims by beneficiaries against trustees. The Court opined that recognition of such an action at law would enlarge damages liability, including the potential for punitive damages, not available in equity. The Court concluded that it would not preside over the death of contract by recognizing as a tort a breach of contract that was found to be in bad faith. See K&K Management, Inc. v. Lee, 316, Md. 137, 169, 557 A.2d 965, 980-81 (1989); Alexander & Alexander, Inc. v. B. Dixon Evander & Associates, 336 Md. 635, 654, 650 A.2d 260, 269-70 (1994) (`[T]his Court refused to adopt any theory of tortuous interference with contract of with economic relations that transforms a breach of contract claim into an intentional tort.') Nor shall we preside over the death of equity by adopting [appellants'] contentions. 334 Md. at 713. Synthesizing the above, we conclude that the Court of Appeals would recognize the tort if it were necessary to afford complete, but traditional, relief. In the case before us, no reason is given as to why recognition of the tort is necessary other than that damages are sought which are not otherwise available, specifically, damages for emotional distress, harm to reputation, and punitive damages. We decline to recognize the tort where the sole reason is an expansion of traditional remedies, as opposed to a situation, not before us, where the traditional remedy might be insufficient to correct the pecuniary loss. The question of viability and application of the tort depends on the facts in a given case." As evidenced above, the tort is not dead upon arrival in Maryland courts but wounded. The plaintiff must demonstrate a unique factual pattern supporting the alleged tort in order for the tort to be recognized. For example, the court may find tortuous interference with an expectancy if someone were to use undue influence to induce gifts from the decedent during his or her lifetime. In such a situation, the caveat remedy would be insufficient to bring those gifts back into the estate. Court usually adhere to the rule that equitable actions do not exist if there is an adequate remedy at law. However it is questionable whether the courts should so cavalierly preclude tortious interference with an expectancy. In many cases of undue influence, the person abusing the confidential relationship ends up being personal representative as well as the main heir. If the caveators challenge the will they may end up paying for the defense of a bad will as long as that defense is in good faith. See Md. Code Ann., Est. & Trusts § 7-603; National Wildlife Federation v. Foster, 83 Md. App. 484 (1990). Maryland Estates and Trusts Article § 4-413 contains a statutory restriction on the use of in terrorem clauses: "If probable cause exists for instituting proceedings, a provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings related to the estate is void." From a practical standpoint, an in terrorem clause is only an effective deterrent if the potential challenger is left a substantial bequest. If the potential challenger is left, for example, $10.00 then he or she would only default $10.00 for bringing suit. Therefore, if one is relying on the in terrorem clause to discourage lawsuits it is usually (and ironically) better to leave a substantial bequest to be forfeited. 4 After the testatrix survived surgery the friend retyped the language from the will kit on her home computer and gave the testatrix a draft. The testatrix reviewed the draft and made only small, typographical changes in the will over a period of several days. Later, the testatrix discussed the contents of this will with her sister.
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