Memorandum

TO: Professor Temple

FROM: Student # 436
DATE: November 21, 2008
RE: Mr. Jack Werzel

I. Question Presented and Brief Answer

Under Pennsylvania probate law, can a will contestant shift the burden of proving undue
influence to a will proponent when
• the proponent had originally received no benefit from the decedent’s first will and will
now receive 66% of her estate,
• the proponent was an attorney for the decedent and visited her repeatedly for social
reasons,
• the proponent was granted power of attorney over all the decedent’s financial matters,
and
• the contestant witnessed repeated moments of confusion and disorientation when
speaking with the decedent in the last several months of her life?

Yes. To establish undue influence and shift the burden of proof to the will proponent, a
will contestant must prove that 1) there was a confidential relationship between the proponent
and testator, 2) the proponent receives a substantial benefit under the will, and 3) the testator had
a weakened intellect. In re Est. of Glover, 669 A.2d 1011, 1015 (Pa. Super. 1996); In re Est. of
Clark, 334 A.2d 628, 632 (Pa. 1975). Mr. Werzel, the will contestant, will likely be able to shift
the burden of proving undue influence. Mr. Hudson likely did have a confidential relationship
with Ms. Werzel because he was her agent under power of attorney over all of her financial
matters. Mr. Hudson did substantially benefit from the execution of the will because he received
66% of Ms. Werzel’s estate. Most importantly, Mr. Werzel will likely establish that his mother
had a weakened intellect because she seemed confused and disoriented the last several months of
her life.

II. Facts

Mr. Jack Werzel wants to make an indirect claim of undue influence against Mr. Dewey

Hudson, a former attorney for the Werzel family. Mr. Werzel was originally going to benefit

from his mother’s will but no longer receives anything. The family attorney has now gained a

substantial portion of Ms. Werzel’s estate after formally been given nothing.

Wilma Werzel executed her first will in 2001 with the assistance of the Werzel family

lawyer, Dewey Hudson. Wilma divided her estate between her son, Jack Werzel, and his sister,

Sarah Werzel Miller. At that time both Sarah and Jack lived near their mom in Washington, PA.

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In February of 2006, Jack moved to Morgantown, WV, and Sarah moved to Harrisburg, PA.

Dewey knew Wilma was sad that her children moved away so he began visiting Wilma once a

month under purely social circumstances. Jack never returned to Washington and Sarah only

came back at Christmas. However, Jack and Sarah did call their mother two times a month to

check on her.

In November of 2007, Wilma broke her hip and this caused her to be bedridden for the

rest of her life. Wilma moved into a nursing home in Washington, PA, and upon learning about

Wilma’s fall and transfer to a nursing home, Dewey decided that he would start visiting Wilma at

least once every two weeks. Wilma’s children continued their phone calls, but they failed to visit

her in the nursing home before her death. Jack and Sarah both stated that on Christmas of 2007

Wilma had trouble remembering both of their names, acted confused when they asked her

general questions, and seemed generally disoriented. Because Wilma’s behavior was normal the

next time they spoke with her both children decided not to make a big deal about what had

happened on Christmas Day.

Throughout the winter of 2007 and spring of 2008, Dewey continued his bi-monthly

visits with Wilma at the nursing home and Jack and Sarah continued their phone calls. Jack and

Sarah stated that at times their mother did seem confused and disoriented. During one of

Dewey’s visits in May, Wilma told him that she wanted to execute a new will and make Dewey

her agent as power of attorney over all of her financial matters. Wilma told Dewey he would

receive a portion of her estate so Dewey got his cousin, an attorney, to draft a new will for

Wilma.

On June 1, 2008, the new attorney met with Wilma at the nursing home to get the

information needed to draft her will and tape-recorded the entire conversation. The new executed

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will called for 66% of Wilma’s estate to go to Dewey Hudson, 33% to go to her daughter, Sarah

Werzel Miller, and 1% to go to her church. Approximately three months later Wilma died.

III. Discussion

Mr. Werzel will likely be able to shift the burden of proof to Mr. Hudson because he will

establish all three elements of undue influence. Undue influence is when the will of another

substitutes for the wishes of the testator. Est. of Clark at 634. If there were an assumption of

undue influence, then the claim would be direct. However, there is not an assumption so in this

case it is an indirect claim. Therefore, Mr. Werzel must prove the three elements of undue

influence and then the burden of proof will shift to Mr. Hudson to disprove undue influence. To

prove undue influence a will contestant must prove three elements: a confidential relationship

between the will proponent and testator, the will proponent gained a substantial benefit from

execution of the will, and the testator had a weakened intellect.

A. Mr. Werzel will likely be able to prove the first element of undue influence
because his mother did have a confidential relationship with Mr. Hudson.

Mr. Werzel will likely be able to prove the first element of undue influence because his

mother did have a confidential relationship with Mr. Hudson. A confidential relationship appears

when the parties do not deal on equal terms and one party has an overmastering influence over

the other. Leedom v. Palmer, 117 A. 410, 411 (Pa. 1922). There is no clearer sign of a

confidential relationship than when one individual grants to another individual a power of

attorney over all of their financial matters. Foster v. Schmitt, 239 A.2d 471, 474 (Pa. 1968)

(finding a power of attorney over a bank account constitutes a confidential relationship).

Here, the relationship Mr. Hudson and Wilma Werzel had may have only been a loving,

caring relationship and thus no overmastering influence on Mr. Hudson’s part. However, like in

Foster, where the court found there to be a confidential relationship because the agent was

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granted power of attorney over another’s bank account, here, Mr. Hudson was granted power of

attorney over all Wilma’s financial matters. Therefore, the result should be the same and Mr.

Werzel should likely establish that there was a confidential relationship because Mr. Hudson was

the power of attorney over all of Ms. Werzel’s financial matters.

B. The proponent received a substantial benefit (66%) of the decedent’s

property.

In addition, Mr. Werzel will likely be able to prove the second element of undue

influence, that Mr. Hudson received a substantial amount of Ms. Werzel’s estate.

Pennsylvania courts must decide on a case-by-case basis what a substantial benefit is because

there is no clear-cut test for it. In re Est. of Fritts, 906 A.2d 601, 609 (Pa. Super. 2006) (finding

that a sizable increase of 40% to 61.5% of an estate constitutes a substantial benefit).

Wilma originally gave half of her estate to her son, the other half to her daughter, and

gave nothing to Mr. Hudson. However, Wilma’s last will gave 66% of her estate to Mr. Hudson,

33% to her daughter, and nothing to Mr. Werzel. Like Fritts, in which the court found a

substantial benefit because the proponent’s share jumped from 40% to 61.5%, here, Mr.

Hudson’s share jumped from 0% to 66%. Therefore, there is no doubt that Mr. Hudson’s amount

greatly increased to a substantial amount, so it would be reasonable to say that Mr. Hudson did

receive a substantial portion of the will. Thus, this element is easily satisfied.

C. Mr. Werzel will likely be able to prove that his mother had a weakened
intellect.

Most importantly, Mr. Werzel will likely be able to prove that his mother had a weakened

intellect. The Pennsylvania courts have not established a test to determine weakened intellect,

but the courts recognize that it typically involves persistent confusion, forgetfulness, and

disorientation. Est. of Glover, 669 A.2d at 1015. Physical impairments do not establish a

weakened intellect. Id. Furthermore, a claim of undue influence is “a subtle, intangible, and

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illusive thing and therefore, it must be allowed to be established by circumstantial evidence.”

Est. of Clark, 334 A.2d at 635. When considering evidence of weakened intellect, the time

remote from the execution of the will is even more important than the day of the execution of the

will. Id. at 634.

An individual will be determined to have a weakened intellect if he or she has become

persistently confused, forgetful, and disoriented. Est. of Glover, 669 A.2d at 1015. In Glover, the

contestants of a decedent’s will filed a claim of undue influence against the proponent. Id.

Although the deceased suffered a stroke, physical infirmities in itself are not enough to prove

weakened intellect. Id. at 1015. The contestants were unable to admit evidence that would

establish that the deceased suffered from any type of confusion, forgetfulness, or disorientation.

Id. The court found that the testimony of several witnesses plus the testimony of the decedent’s

doctor proved that the decedent was strong-willed, mentally sharp, and suffered from no signs of

a weakened intellect. Id.

Here, Mr. Werzel has made claims that his mother did have spells of confusion and

disorientation from time to time. Starting on Christmas of 2007, Wilma seemed confused and

forgot Jack and Sarah’s names. Most likely his sister will be able to corroborate this statement.

Mr. Werzel will likely want to get more witness testimony that states that his mother had more

episodes of confusion and disorientation. Additionally, even though Ms. Werzel was bedridden

for the remainder of her life after she broke her hip that does not automatically establish a

weakened intellect. Unlike Glover, where the court held the deceased did not have a weakened

intellect because she was still a tenacious, sharp individual with a strong mental-capacity, here,

Wilma’s episodes of confusion and disorientation do not show someone to be tenacious, sharp,

and with a strong mental-capacity. Therefore, the court may find that Wilma did have a

weakened intellect because she did experience repeated episodes of confusion and disorientation.

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 In reference to weakened intellect, the courts in Pennsylvania give more credence to an

individual’s remote mental history as opposed to his or her mental capacity at the time of the

execution of the will. Est. of Clark, 334 A.2d at 634. In Clark, John Smith was the proponent of

Alice Clark’s last will and members of Mrs. Clark’s family accused Mr. Smith of undue

influence. 334 A.2d at 633. The contestants had several witnesses testify that Mrs. Clark had

become confused, forgetful, and disoriented over the last two years of her life, which was within

the time of her last executed will. Id. at 633. Her doctor said she had become confused and

disoriented, her attending nurses said she had become hostile and disruptive. Id. The court found

that Mrs. Clark did have a weakened intellect because it gave more credence to Mrs. Clark’s

remote mental history and not so much at the time of the execution of her will. Id. at 634.

Therefore, the court held that with the addition of proving a confidential relationship and

substantial benefit, the burden of proof was to shift to John Smith. Id. at 635.

Here, Mr. Werzel will want to prove that during the period when his mother knew Mr.

Hudson she had a weakened intellect. Mr. Werzel has stated that in phone conversations, during

the winter months of 2007 and spring months of 2008, his mother did appear to be confused and

disoriented. The execution of Wilma’s will took place on June 1, 2008. Therefore, it is possible

that she was experiencing confusion, forgetfulness, and disorientation for approximately seven

months prior to the execution of her will. As stated before, Mr. Werzel will want to get testimony

from Wilma’s former doctors who knew her throughout the years, her friends, and workers from

the nursing home to corroborate his story.

Additionally, Mr. Hudson, Wilma Werzel, and the new attorney did tape the conversation

between them at the time of the signing of the new will. If a review of that tape shows Wilma

making strange comments or have the appearance of being confused then this will play into Mr.

Werzel’s favor. Like Clark, where the court found the decedent did suffer from a weakened

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intellect because witnesses testified that she became confused over the last two years of her life,

here, Mr. Werzel will testify that Wilma became confused over the last seven months of her life.

Therefore, the result should be the same if Mr. Werzel is able to obtain witness testimony and

even audio evidence to corroborate that Wilma had become confused, forgetful, and disoriented

over the remaining several months of her life.

On the other hand, small episodes of confusion and disorientation over the phone will

likely not be enough to show the court that Wilma was persistently confused, disoriented, and

forgetful. The phone calls from Jack and Sarah only came twice a month for that seven-month

period. Those possible twenty-eight phone calls over seven months may not be enough to

convince the court of a weakened intellect. Mr. Hudson’s tape recording may even prove that

Wilma was sharp, lucid, and acting normal at the times of those conversations.

Nevertheless, the key part of proving weakened intellect is going to come from the

testimony of those who knew Wilma. In Glover and Clark, it has been the testimonies of doctors,

friends, and neighbors of the decedent that helped sway the court. If the testimonies show Wilma

becoming confused, disoriented, and forgetful throughout her last remaining months of living,

then this will be beneficial for Mr. Werzel, if not, then it becomes beneficial for Mr. Hudson.

IV. Conclusion and Recommendation

In summary, Mr. Jack Werzel will likely be able to shift the burden of proving undue

influence because he will be able to prove all three elements with clear and convincing evidence.

Mr. Hudson likely did have a confidential relationship with Wilma Werzel because he was her

power of attorney over all of her financial matters. Mr. Hudson did substantially benefit from the

execution of the will because he originally was to receive 0% of her estate but will now receive

66%. Most importantly, Mr. Werzel will likely prove that his mother had a weakened intellect

because he witnessed his mother experiencing some confusion and disorientation over the last

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several months of her life. If Mr. Werzel can obtain more witness testimony, audio evidence, and

medical testimony to establish that his mother was suffering from confusion, forgetfulness, and

disorientation then he will definitely have a strong chance of proving a weakened intellect.

In recommendation, Mr. Werzel will want to find more witnesses that will testify that his

mother had become confused, disoriented, and forgetful. He will likely be able to obtain his

sister’s testimony to corroborate that Wilma was experiencing periods of confusion and

disorientation over the phone during the last several months of Wilma’s life. Mr. Werzel will also

want to obtain testimony from medical experts who have treated Wilma, from neighbors and

friends who knew her in the last months and years of her life, and from the helpers of the nursing

home where she resided for the last eight months of her life. Mr. Werzel will likely want to use

the tape recording from the meeting where Wilma executed her final will. The tape recording

may potentially be a crucial piece of evidence because it could help establish that Wilma did

have signs of Wilma’s confusion, forgetfulness, and disorientation. Following these

recommendations may improve Mr. Werzel’s probability of shifting the burden of undue

influence to Mr. Hudson.