Moore v. Smith

COLE, Judge. In this case, involving testamentary law, we are asked to decide two issues: whether there was sufficient evidence to support a finding of undue influence and, if so, whether the circuit court erred in invalidating the testator’s entire will instead of only that part which was the result of the undue influence. 1 ³⁵⁰ Andrew O. Koontz, the testator in this case, died on October 19, 1985, at the age of sixty-eight. In May 1987, a petition for probate was filed by the Petitioner, Charles Russell Moore, Sr., (Moore), in the Orphan’s Court for Anne Arundel County. Thereafter, the Respondent, Reverend Ronald S. Smith (Smith), the testator’s nephew and closest immediate relative, filed a petition to caveat.

In May 1988, following a lengthy hearing, the Orphan’s Court ruled that the will submitted by Moore was void because it had been procured by undue influence and fraud exerted by the Petitioner. Pursuant to Md.Code (1974, 1989 Repl.Vol.), § 12-502 of the Courts and Judicial Proceedings Article, Moore appealed to the Circuit Court for Anne Arundel County for a de novo hearing. We set forth the substance of the evidence produced at that hearing. Andrew Koontz (testator or Koontz), owned and lived in a waterfront property located in Arnold, Maryland.

For more than ten years, he shared this home with Grace Allen (Allen) who was the last of several women who had lived with Koontz and his housekeeper, Nada White, as part of an adult women’s foster care program. After Ms. White’s death, Allen remained as Koontz’s sole ward. In 1980, the testator executed a will prepared by his attorney (Edward Monaghan) in which he left one half of his estate to his nephew, Smith. The testator devised the other half to Allen and directed that it be held in trust by Smith for Allen’s benefit during her lifetime.

He named his attorney as personal representative and Smith as alternate personal representative. In 1983, the testator suffered a severe stroke which left him partially paralyzed, and physically dependent on others. The testator was also partially blind. The facts disclosed that the testator had always been dependent on those close to him to handle his financial affairs because he was unable to read or write, although he could sign his name.

Allen ³⁵¹ had a history of mental illness 2 and alcoholism, and, therefore, was also incapable of handling either testator’s or her own financial affairs. Furthermore, she was incapable of providing sufficient physical support to assist the testator in moving about the house. Consequently, in September 1984, the testator and Allen placed an advertisement in the newspaper seeking a live-in, male helper. Petitioner Moore responded to the advertisement and was hired.

Moore’s compensation for this job was $100 a month plus room and board. Because his duties did not require him to be home all day, Moore also held an outside job which paid approximately $7,000 per year. Within a month of being hired, Moore went to an attorney, Franklin M. Ward, whom he knew, and requested that he prepare wills for both the testator and Allen. Ward drafted the wills pursuant to Moore’s instructions.

Ward never met the testator or Allen, nor did he consult with them regarding the contents of their wills. Moore picked up the wills from Ward’s office in November 1984 and took them home to be executed by Koontz and Allen. According to Moore, he read the testator’s will to him before he signed it. Moore was a witness to each will and Koontz and Allen witnessed each other’s will.

Moore stored the wills in his room. Neither Koontz’s nor Allen’s family was advised of the execution of these wills at that time. In addition to being named personal representative in both wills, Moore was also a contingent beneficiary. The relevant provision found in Koontz’s two-page will reads as follows: After the payment of all expenses of administration and other charges and obligations properly payable therefrom, I give, devise, bequeath and appoint all of my estate and property, real and personal, whether in possession, expectancy or remainder, including any property ³⁵² over which I may have power of appointment to Grace Elizabeth Allen, if she survives me; but if she does not survive me, then I give, devise, bequeath and appoint the same to Charles R. Moore, Sr.[ 3 ] There was no mention of Koontz’s nephew, Smith, in the testator’s new will.

Near the time these wills were executed, Smith underwent a series of life-threatening operations which prevented him from visiting the testator until two months before his death. Approximately six months after the testator’s death, Moore executed a deed in which he, purportedly as personal representative of the estate of Andrew O. Koontz, conveyed the testator’s real property to Allen. Simultaneously, a second deed was executed in which Allen conveyed her fee simple interest in this property to herself and Moore as joint tenants. Over a year later, on May 27, 1987, Moore filed the petition for probate of Koontz’s will.

On that same date, the two deeds described above were recorded. Following the circuit court’s affirmance of the ruling by the Orphan’s Court invalidating the 1984 will, Moore appealed to the Court of Special Appeals. We issued a writ of certiorari before proceedings commenced in that court and shall affirm. I Moore argues that there was insufficient evidence to prove that he exerted undue influence over the testator within the one-month period preceding the execution of the new will.

In response, Smith maintains that when con ³⁵³ sidered in its totality, the evidence sufficiently supported the court’s findings. Generally, undue influence amounts to physical or moral coercion that forces a testator to follow another’s judgment instead of his own. Page On Wills § 15.2 at 712 (1965). In Nalley v. Nalley, 253 Md. 197 , 251 A.2d 849 (1969), we stated that undue influence which will avoid a will must be unlawful on account of the manner and motive of its exertion, and must be exerted to such a degree as to amount to force or coercion, so that free agency of the testator is destroyed. 253 Md. at 202 , 251 A.2d 849 , (Quoting Stockslager v. Hartle, 200 Md. 544, 547 , 92 A.2d 363 (1952)).

Although we have not laid down a test to determine the existence of undue influence with mathematical accuracy, we have recognized in many appellate cases several elements characteristic of its presence, including: 1. The benefactor and beneficiary are involved in a relationship of confidence and trust; 2. The will contains substantial benefit to the beneficiary; 3. The beneficiary caused or assisted in effecting execution of will; 4.

There was an opportunity to exert influence; 5. The will contains an unnatural disposition; 6. The bequests constitute a change from a former will; and 7. The testator was highly susceptible to the undue influence.

See Nalley, 253 Md. at 202 , 251 A.2d 849 , Shearer v. Healy, 247 Md. 11, 23-25 , 230 A.2d 101 (1967); Arborgast v. MacMillan, 221 Md. 516, 521 , 158 A.2d 97 (1960); Sellers v. Qualls, 206 Md. 58, 70-71 , 110 A.2d 73 (1954); Stockslager supra, 200 Md. at 547, 552 , 92 A.2d 363 (1952); Koppal v. Soules, 189 Md. 346, 350-52 , 56 A.2d 48 (1947); Frush v. Green, 86 Md. 494, 501-02 , 39 A. 863 (1898); Hiss v. Weik, ³⁵⁴ 78 Md. 439, 446-47 , 28 A. 400 (1894); Wall v. Heller, 61 Md.App. 314, 330 , 486 A.2d 764 , cert. denied, 303 Md. 297 , 493 A.2d 350 (1985); Hess v. Frazier, 27 Md.App. 150, 154-55 , 340 A.2d 313 , cert. denied, 276 Md. 745 (1975). These same elements have been enumerated by courts in other jurisdictions. 4 We have also pointed out that proving the existence of undue influence may be more difficult when it is perpetrated upon an individual with cunning and craftiness. Consequently, notwithstanding the fact that direct testimony establishing the existence of undue influence is not presented, it still may be proved by circumstantial evidence. Mills v. Glenn, 152 Md. 464, 468 , 136 A. 831 (1927).

In the instant case, the trial court made the following findings: a) That Mr. Moore was actively involved in the preparation of a Will for Mr. Koontz approximately less than one month after beginning employment as his caretaker; b) That Mr. Koontz could not read or write, except for signing his name; c) That Mr. Koontz never personally consulted an attorney regarding the 1984 Will; d) That Mr. Moore and Mrs. Allen, the two witnesses, were the sole beneficiaries under the Will; e) That Mr. Moore prepared the Will and was largely benefited by it; f) That the Will was executed in the seclusion of the Koontz home; ³⁵⁵ g) That none of Mr. Koontz’s friends or family were present at the signing of the Will, or were informed of the Will until after his death; h) That six months after Mr. Koontz’s death, Mrs. Allen executed a deed making Mr. Moore a joint tenant with Mrs. Allen of Mr. Koontz’s property. The lower court relied on Mills, supra and Grove v. Spiker, 72 Md. 300 , 20 A. 144 (1890), as support for its conclusion that the will in the instant case was procured by undue influence. We now discuss these cases in turn. In Grove , the testatrix, who was eighty-seven, illiterate, and feeble-minded, leased office space to the caveatee, Grove, who was a lawyer.

After separating from his wife, Grove moved into the testatrix’s home where he paid no rent. He also stopped paying rent for use of the office space. The testatrix later conveyed the office property to Grove, for which he paid nothing. This transaction was executed without the knowledge of the testatrix’s business agent who had always handled all of the testatrix’s business transactions.

The testatrix’s original will did not contain a bequest to Grove. In 1885, however, Grove drafted a codicil to this will which reduced a legacy of $1,000, made to the testatrix’s sister-in-law, to $250 and bequeathed the remaining $750 to himself. This codicil was also executed without the business agent’s knowledge. Thereafter, in 1886, Grove secretly drafted and had executed a completely new will which left Grove and his daughter approximately 80 percent of the testatrix’s estate.

Relying heavily on the clandestine circumstances through which the will was executed, the Court concluded that the exertion of undue influence by Grove was unmistakable. 72 Md. at 305 , 20 A, 144. In Mills , the testatrix, Kate Glenn, asked a couple, the Mills, to move in and assist in her daily care. Glenn’s husband’s job required him to be away from home for long periods of time and Glenn, seventy-one years old, illiterate, and crippled, was dependent upon the aid of others. The Mills received no compensation for their duties.

Two ³⁵⁶ months after the Mills moved in, Glenn executed a will leaving the majority of her property to the couple. Glenn's husband was not informed of the will, which left him a legacy of only $25. The will was prepared by an attorney who met with Glenn; the Mills were not present at this meeting or when the will was executed. Two months after the will was executed, Glenn with Mr. Mills’ guidance, then executed a deed conveying the house to the Mills.

On the same day, the Mills executed a mortgage to secure a loan in order to make repairs on the property. As Glenn explained to one witness, the deed was executed in order to secure the loan for repairs and to repay the Mills for all they had done. Once again, Glenn’s husband was not informed of these transactions. Following Glenn’s death, the Mills informed Glenn’s husband of the execution of the will and deed.

In support of its conclusion that the deed was procured by the Mills’ undue influence and fraud, the court relied heavily on the circumstances surrounding execution of the will and subsequent deed noting: It appears very unlikely that of her own free will she would dispose of [the home] without receiving any considerable part of its value, thus throwing herself and her husband in their old age, and in her extremity, upon the benevolence of others for a home, and, in part, for support. * # * * # * They were living in intimacy with her, and she was much dependent upon their care. They were in a favorable position for obtaining an unfair advantage, if they desired, and if it could be done. 152 Md. at 469 , 136 A. 831 . The Court also found the reasons upon which Glenn conveyed the property (to secure a loan for repairs and to repay the Mills) to be unconvincing; it concluded (1) that the loan could have been secured without execution of the deed, and (2) that the testatrix had already sought to “repay” the Mills through execution of her will. Id. at 470 , 136 A. 831 .

Consequently, the deed was set aside. ³⁵⁷ Having reviewed the record in the instant case, we cannot say that the trial court’s findings were clearly erroneous or insufficient to support the conclusion that there was undue influence in the procurement of the 1984 will. We explain. a. Susceptibility of testator, Confidential relationship and opportunity to exert undue influence The evidence seems to