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Lessons From a Jury Trial in a Tennessee Will Contest Case

 

Last month, I was in the hallway of the Wilson County Courthouse when I was told that the jury had reached a verdict in the will contest case which I and Jeremy Oliver, another lawyer in our firm, had been trying for four days.  During the trial, the jury had heard from eighteen witnesses, including: two treating doctors of the deceased; a caseworker from Adult Protective Services; and, the lawyer who had drafted the Will that my client and I were contesting.

The jury only had to make two decisions: (1) Was the Will the result of undue influence? and (2) was the Will the result of fraud?  If the jury determined that the Will was either the result of undue influence or fraud, it would be set aside (which is what we wanted and for what we had fought for a year and a half).

The trial, I thought, had gone very well for us, but I still wondered if the jury would get it —- that, as I had told the jury in my opening statement, this was a case about two greedy people who had isolated, lied to and manipulated a dying 87 year old woman in order to get her to change her Will to leave all of her assets to them.  The jury did get. The jurors found that the Will in question was the result of both undue influence and fraud.

More elderly people these days seem to have more assets, which is a good thing.  Unfortunately, some families, sometimes by blood and sometimes by marriage, are afflicted with one or more family members who are hardwired to try to manipulate an elderly relative who has money, real estate, an insurance policy, a 401(k) account, or other property of value.  Their motivation is greed. Their goal is simple: Find a way to get all of the person’s assets, or at least more of their assets than the elderly family member truly wants them to have.  Sometimes, the way is to have the elderly relative change his or her will. Sometimes, it is to gain control of the elderly relative’s assets by having the relative change the ownership or payable on death beneficiary of bank or other financial accounts.  In at least two cases that I have handled, both methods have been used.  (Financial manipulation of the elderly is not done just by family members, but by non-family members, such as caregivers and friends).

In the case I tried, the family members who manipulated the change to the old Will by causing the elderly person to execute a new Will did in fact take care of the elderly relative, but their ulterior motive was to take care of themselves.  Financial manipulation done by family members or caregivers who are ostensibly providing good care for the physical needs of an elderly person is not uncommon.

Psychologists who are knowledgeable about the ways fraud and undue influence are sometimes used to take financial advantage of elderly people will tell you that a recurring pattern of behavior by the manipulators goes something like this:  The manipulators will build the trust of the elderly person by taking care of them (often by moving in with the elderly relative or having the elderly relative move in with them); isolate the elderly person; cause a division in the family or among the close friends of the elderly person; and convince the elderly person that they are the only ones who will protect the elderly person and the only ones who genuinely care about the elderly person.

Creating fear in an elderly person is incredibly psychologically effective. The more scared the elderly person becomes, the more power the manipulators (who have set themselves up as protectors) have. So, as in the case I tried last month, fear is a key ingredient of the manipulators.

For an article that provides remarkable insight into the psychology of how manipulators use undue influence on the elderly to take financial advantage of them, check out the article written by Dr. Ryan Hall, Dr. Richard Hall and Marcia Chapman: Exploitation of the Elderly: Undue Influence as a Form of Elder Abuse, Clinical Geriatrics, Vol. 13, Number 2, February 2005.

In this will contest case, the manipulators had a distinct advantage.  There were plenty of people who had no financial stake in the outcome of the case, including a caseworker from Adult Protective Services; doctors; the lawyer who drafted the Will we challenged; and neighbors and friends of the elderly person, all of whom testified that the elderly person did not appear, in any way, to be under the undue influence of anybody.  In fact, many of them described her as strong-willed; independent; determined; and totally competent.  Fortunately, the jury in our case figured out that these witnesses only had a brief and compartmentalized glimpse into the life of the elderly person. The testimony of the family members who knew much more about her, many of whom had not been able to visit with her because of the isolation tactics of the manipulators, directly contradicted the testimony of the witnesses called by the defense.

Because of my involvement with fraud and undue influence cases and my own efforts to learn more about the psychological tactics used by manipulators, I understand how two people who, to most all of the rest of world, including well-credentialed professionals, seem to be doing a wonderful job of taking care of an elderly person, can, at the same time, be using fraud and undue influence to get what they want out of her. It is a very sad and dark truth that this happens, but it is a truth nonetheless.

What concerned me, before the trial started, was whether twelve jurors who had not had my experiences and immersion into the facts of the case could grasp what had happened and how it had happened.  Would they see the isolation and how it had affected the elderly person? Would they see that the division in the family was caused by the manipulators in order to set themselves up as the protectors?  Would they see how the lies about the other family members had caused the elderly person to believe that the manipulators were her only protection against the other family members? (Among the lies was that the other family members wanted to sell her home and to put her in a nursing home).  Would they see that the manipulators chose the lies that would cause optimal paranoia, fear, and distrust of the family members who the manipulators wanted cut out of the Will of the elderly person?  Ultimately, in spite of quite a bit of testimony about how well the manipulators took care of the elderly person and how independent, etc. that she was, the jury did see the truth.

Throughout this post, I have referred to the family members who caused the elderly woman to change her will and bank accounts as the “manipulators.”  They were worse than manipulators. They were emotional abusers.  The elderly person who this undue influence and fraud case was about suffered profoundly as the result of being the pawn in the scheming and psychological tactics of the family members who benefited from the Will at issue.  The good news is that it is very possible in Tennessee, by bringing a will contest case (or, where a will is not involved, by bringing an undue influence or fraud case) to have a jury enter a verdict that at least prevents manipulators from keeping assets which they wrongfully acquired.