Welcome to the February 2021 edition of Reminger’s monthly newsletter, In Brief: Ohio Estate and Trust Litigation Updates, focused on estates, trusts, and guardianships and the disputes surrounding them. Each month, our attorneys will share case law updates, news, and pertinent articles to help you navigate the complex world of estates, trusts, and probate litigation.

Undue Influence, Diminished Capacity and Expert Witnesses in Filo v. Filo

Undue influence cases can be very difficult for parties on either side of the “v.” Supporting evidence from attorneys who wrote the estate plan, the parties, and medical professionals is crucial. In appropriate circumstances, experts need to be consulted. Competing experts were introduced in Filo v. Filo, when a neurologist specializing in cognitive disorders and dementias, including Alzheimer's disease, was called for the plaintiff and a forensic psychiatrist was called for the defense. Against claims of suspicious circumstances, fiduciary duties, and allegations of dementia and lack of capacity, the jury agreed with our trial team’s presentation, that Elmer Filo, of his own free will, eliminated his daughter as a beneficiary of his farm.

The estate planning at issue was typical in the context of documents for farmers, and consisted of an irrevocable trust, a pour-over will, and a Limited Liability Company.  In effect, the Farm was deeded to the LLC and the LLC membership shares were funded into the irrevocable trust. Therefore, the farm was operated by the manager of the LLC, and the Trustee of the trust controlled the shares of the LLC and could replace the manager.  Elmer received income for life and was able to use the farm as he wanted while he was alive. At death, the LLC units would transfer to the beneficiary of the trust. While the trust was irrevocable, Elmer reserved the right to change beneficiaries by signing a document known as a Power of Appointment. About a month before he died, Elmer signed a power of appointment that removed his daughter as the beneficiary of the Trust. 

The central allegations of undue influence came to life based on the claim that Elmer’s son, who benefited from the plan, sought out and secured the attorney who assisted Elmer in the execution of such documents. In securing the new attorney, Elmer’s longtime lawyer was discharged. And, Elmer’s decision to disinherit his daughter was made about a month before he died. When we pursue these cases on behalf of plaintiffs, we focus our investigation on discovery that might serve to demonstrate a fiduciary relationship, which, if established, creates a rebuttable presumption that the transaction was the product of undue influence. Such presumption then shifts the burden onto the defendant to prove that the document was executed free from undue influence. If we represent the Plaintiff, we then tell the story of how the settlor was coerced by demonstrating the “red flags” of undue influence through direct and cross examination of witnesses at trial. On the other hand, if we defend the case, we attempt to show through the available facts that the decedent signed the documents of his own free will, thus rebutting the presumption or negating any red flags that might be demonstrated. The mere existence of red flags does not necessarily mean that undue influence was exercised or that a document was the product of undue influence.

Such was the battle that we were called upon to defend in Filo. Evidence that shows a lawyer, who is newly introduced to a client with diminished capacity, employed processes to protect against the imposition of undue influence is vital to the defense’s position. It is helpful if the “new” lawyer took efforts to confirm intent outside the presence of the potential influencer. When the estate planning attorney is available to testify credibly about what really happened, the good lawyering process can aid in the defeat of an undue influence claim. Our estate litigation team often lectures in CLE courses about the benefits of incorporating capacity-screening procedures, along with steps to protect against undue influence when drafting estate plans for persons who may qualify as sufficiently diminished to implicate Rule of Professional Conduct 1.14.

Ultimately, the Madison County Probate Judge issued the correct instruction and the jury upheld Elmer’s documents, finding no undue influence. Thereafter, the Plaintiff appealed the decision, in part arguing that the probate court’s jury instructions were improper because they did not include the relevant presumption specific to undue influence and the burden-shifting aspect of the law. Pertinent to the rule relating to presumptions, the 12th district court of appeals held that when a trial court finds that the defendant presented evidence of a sufficient quality to rebut the presumption, the burden shifts back to the plaintiff. Therefore, when a trial court makes such determination, the presumption disappears and no jury instruction on the burden-shifting rule is required. And, because the probate court in Filo found the testimony of the estate planning attorney and experts regarding Elmer’s state of mind and cognitive abilities to be substantially credible, the presumption was rebutted and the burden shifted back to the plaintiff Therefore, the trial court was justified in not giving an instruction on a presumption of undue influence to the jury.

Reminger’s fully staffed Columbus-based Estates, Trusts, and Probate Litigation team understands the complexities of estate litigation and has experience in a multitude of matters including: will and trust contests, estate fraud, inheritance disputes, breach of fiduciary duty and financial abuse of the elderly. If you have questions or concerns about farm and land inheritance disputes, or another matter, please contact a member of our practice team.
Adriann S. McGee
Columbus, OH
Mary Kraft
Columbus, OH
Estates, Trusts, and Probate Litigation

Our attorneys have substantial experience with probate disputes through trial in Ohio, including will contests, trust litigation, estate fraud, undue influence, inheritance disputes, breaches of fiduciary duty, abuse of powers of attorney and...

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