Mr. Cub - and Influence Undue?

In the days following the passing of Ernie Banks this past January, one of the most oft-heard tributes was that he was a true “ambassador” for the game of baseball. Dubbed both “Mr. Cub” and “Mr. Sunshine,” Ernie’s broad smile was frequently flashed at The Friendly Confines as he tirelessly supported the Cubs and exhorted the fans, “It’s a beautiful day . . . let’s play two!” So beloved was ol’ No. 14 that since 2008 his bronzed statue has graced Wrigley Field in a loving tribute to the man and his legacy.

Off the field Ernie was also much loved, as he was married four times, and he was survived by his fourth wife (from whom he was estranged, with divorce pending) and four children. Imagine their collective surprise on discovering that Ernie wrote a Will that left all of his assets to his long-time caregiver and friend, Regina Rice. Surprise quickly gave way to anger -- and firm conviction that somehow Rice coerced Ernie to divert his assets away from his cherished family. So the family vowed to attack the validity of Ernie’s Will.

At a recent probate court hearing in Cook County, the judge upheld Ernie’s Will, indicating that the evidence supported the conclusion that Ernie was of sound mind when he signed his Will. At this time it isn’t clear if the Banks family has another strategy in mind -- although squabbling in court continues apace.

Most people are familiar with the general idea of these kind of so-called “Will contests.” These are efforts to have a probate court judge rule that a Will signed by a decedent should not be considered valid. These claims are brought, naturally, by parties whose expectations have been thwarted.

There are a variety of grounds for bringing Will contests, but they typically fall into one of two broad categories -- undue influence, and lack of testamentary capacity:

Undue Influence.

Challengers often assert that someone (for example, a caregiver or solicitous neighbor) exerted “undue influence” over the decedent. This, logically, is the claim asserted by the Banks family against Regina Rice. Influence is considered “undue” when it is so persistent and overwhelming that it prevents the person from exercising his own will in the disposition of his estate.

In order to invalidate a Will, the undue influence must have been directly connected with the execution of the Will, and it must have operated at the time the Will was made. Undue influence can be exerted by the beneficiary directly or by third parties, such as the spouse of the beneficiary. Influence need not be exerted in an unfriendly or untoward manner to be considered undue; even kindness and affection can constitute undue influence if they impair the decedent’s freedom of thought and choice.

When a fiduciary relationship exists between the decedent and the beneficiary under the Will, the law presumes there is undue influence. Among the factors that a challenger to the Will might need to establish include:

(1) there is some fiduciary relationship between the decedent and the beneficiary such that the beneficiary is the dominant party, and

(2) the decedent had great trust and confidence in the beneficiary, and

(3) the beneficiary either prepared, or helped in the preparation of the purported Will (making all the arrangements with the lawyer, for example), and

(4) the beneficiary would receive a substantial benefit under the document.

If these factors are present, then it is up to the beneficiary to prove that there wasn’t undue influence at work.

Lack of Testamentary Capacity.

Proof that a person lacked “testamentary capacity” is the other common ground for trying to invalidate a Will. In Illinois, testamentary capacity has been defined by the courts as the “mental ability to know and remember who are the natural objects of one's bounty, to comprehend the kind and character of one's property, and to make disposition of the property according to some plan formed in one's mind.”

Recognize that this is a relatively low bar. A person can, for example, have insufficient mental capacity to enter into a legal contract, yet have the capacity to make a Will. The law presumes the sanity and soundness of mind of every person until the contrary is shown.

A challenger contesting a Will on grounds of lack of testamentary capacity has the burden of proving it. This can, again, be an uphill push. Evidence of physical impairment, and evidence that a guardian may have been appointed for a person, can be considered by the court on the issue of testamentary capacity, but neither piece of evidence is, by itself, conclusive.

Evidence of a lack of testamentary capacity must relate to the time at - or near - the execution of the Will, since a Will may only be invalidated on this ground if it’s proved that the decedent lacked testamentary capacity at the time the Will was executed. The fact that a decedent may have been diagnosed with Alzheimer’s disease or other mental impairment or deterioration 6 to 12 months after a Will was signed may be considered by the court, but again is not conclusive on the status of capacity when the Will was signed.

Filing a Will contest is undertaken at times for strategic purposes. That is, on occasion an upset, overlooked or otherwise disgruntled heir will file a Will contest action that has precious little merit with the hope that some settlement might be wrested from the decedent’s estate to make the contest go away.

A couple sidebar comments of interest:

• Ernie Banks’ Will apparently transferred personal property and memorabilia to Regina Rice (baseballs; his Hall of Fame ring; Rolex watch; Presidential Medal of Honor).It also transfers the rights to Ernie’s name and his likeness to a trust also controlled by Regina Rice.Presumably that’s where the real value in the estate is – the ability to exploit the Banks name and likeness for commercial gain.The terms of that trust are not public (although his Will is).Absent allegations of wrongdoing, the administration of the Banks trust is not subject to probate court scrutiny or oversight.Note that this is neither improper nor suspicious; to the contrary, anonymity is one of the goals that our clients often have when planning their estates.
• Ernie signed his Will on October 17, 2014.A mere 3 months later, on January 15, 2015, the Illinois Probate Act was amended by adding new Sec. 4a-5 which addresses transfers to caregivers. This new law provides that any transfer to a caregiver in excess of $20,000 is presumed void if challenged. In such a case the onus is put on the caretaker to prove that the transfer is valid – and prove it by “clear and convincing evidence” which is a stiff burden. Note for these purposes, “transfers” to caregivers include not just bequests under Wills, but also trusts, deeds, payable on death (POD) accounts, contracts, or other beneficiary designations.