Evidentiary Issues in Undue Influence and Will Contest Cases

By J. Ross Pepper on April 5, 2013 12:58 PM

The Supreme Court of Tennessee has recently issued an opinion in an undue influence and will contest case which speaks to what type of evidence a party can use, at trial, to attempt to set aside a will based on undue influence. In will contest cases, undue influence cases, breach of contract cases, and just about every other kind of case, clients are often surprised about what type of evidence cannot be used at trial to help prove their cases. In analyzing any case, an experienced trial lawyer knows that he or she must consider, not only what facts help prove his or her client's case, but also, which of those facts might not be admissible at trial.

In trials, only relevant evidence is admissible. What makes evidence relevant? The test for determining relevance, in many instances, becomes very, very subjective. Here is the test under Tennessee law: Does the evidence have any tendency to make the existence of any fact that is of consequence to the determination of the case more probable or less probable than it would be without the evidence? If so, it is relevant.

In the case at hand, In Re Estate of Smallman, the Supreme Court of Tennessee reversed a jury verdict because it determined that the trial court had let the jury hear evidence which was not relevant. What was the offending evidence?
At the trial of the undue influence case, the sons of the deceased ("Sons"), who filed the will contest case, alleged that the will executed by their father was the result of the undue influence of his new wife ("Wife"), to whom he was married just a couple of weeks before he died.

At trial, the lawyers for the Sons presented evidence to the jury that Wife was previously involved with helping her deceased mother execute a will. The will which Wife's mother executed left everything to Wife, and left nothing to the children of Wife's deceased sister. The evidence presented was that Wife had driven her terminally ill mother to the office of the lawyer who prepared the will that Wife's mother signed and that left all of the mother's property to Wife. The lawyers for Sons argued that this evidence was relevant to show a common scheme on the part of Wife to exert undue influence to have ill persons leave property to her and not to other persons who, naturally, should have received something.

The Supreme Court determined that the evidence related to Wife's mother's will was irrelevant. While the Court acknowledged that evidence proving a common scheme or plan was relevant under some circumstances, the evidence was not relevant with respect to the undue influence case against Wife because there was no "substantial similarity" between the circumstances surrounding Wife's mother's will and surrounding the will challenged by Sons.

The Sons' lawyers, as part of their proof of undue influence, also presented evidence to the jury that Wife owned real estate for which she paid nearly two million dollars. Evidence regarding someone's financial condition is almost always irrelevant under Tennessee law, in my experience, to try to prove or to disprove most matters. In some limited circumstances, evidence of someone's financial condition can be relevant. For example, in Tennessee, evidence that an heir was very wealthy may be admitted to prove that the reason the heir was omitted from a will was not the result of undue influence.

In this case, ruled the Supreme Court, evidence of Wife's financial condition was not relevant because she would not benefit from a finding of undue influence. To reach that conclusion, the Court applied the rule that "evidence of the financial condition of persons who would not benefit from a finding of undue influence is properly excluded."

After concluding that the evidence discussed above was not relevant, the Supreme Court reversed the jury's verdict because it concluded that the evidentiary errors of the trial court were not harmless and more probably than not prejudiced the jury against Wife.