Webinar Transcript: Social Law Library Webinar: What is Undue Influence, and What Can Drafting Lawyers Do to Detect It?

Video Transcript

Mike: Okay good afternoon, I’m Mike Saporito, I’m the CLE coordinator here at the Social Law Library, welcome to our undo influence program it’s great to have so many of you with us here today. A few things before we begin today’s program we ask that you use the Q&A feature in zoom and not the chat feature for questions that you may want to ask the panel, they and I will be monitoring the question and answer box. I’ll try to keep my eye on the chat but we’re not going to be focused on that. Near the end of the program I’ll put a survey link in the chat box that you can use, we’d appreciate hearing back from you with any feedback and we are recording this program and I will send the video link out to anybody who registered for today’s program, I usually get that out within 24 hours. Today I want to introduce our panelists, first retired probate and family court Judge Anthony Nesi who is currently engaged in conciliation of domestic relations in the state and trust cases, and we also have trust and estate litigation, guardianship and conservatorship attorney Darian Butcher from Butcher Law LLC welcome, and we’re happy to have clinical neuropsychologists from Northboro, Massachusetts Dr. Elizabeth Nasser, and last and most certainly not least our moderator today is estate planning, trust, estate and gift taxation, MassHealth and probate and elder law attorney Brian Barreira from The Law Offices of Brian Barreira, welcome to all of you and welcome Brian.
Brian: Okay, I have to just disagree with you at least – I am least and I’m just going to take credit for the three panelists and all their brilliance but thank you everybody for joining. We’re going to be talking about undue influence today, what is it? I can’t define it so that’s our first question for the panel – What is it? What is undue influence? There’s influence then there’s undue influence, what’s the difference?

Darian why don’t you get started?
Darian: Sure, I think judge Nesi will agree with me, you know it when you see it. It’s one of those –
Judge Nesi: exactly, that’s perfect.
Darian: I mean technically what are we looking for, we’re looking for an unnatural disposition that’s been made by a person that’s susceptible to undue influence to the advantage of someone with an opportunity to exercise undue influence and who in fact has used that opportunity to procure the contested disposition through improper means. So those are basically the elements of our claim, but we have to drill down, right, and so when we’re talking about what’s undue I was sharing with the with my panelists before we got started that there’s some really sexy language that I always like to quote when I can, it comes from Neill v Brackett and it’s ‘whatever destroys free agency and constrains the person whose act is under review to do that which is contrary to his own untrammeled desire it may be caused by physical force by duress, by threats, by inopportunity it may arise from persistent and unrelaxing efforts in the establishment or maintenance of conditions intolerable to the particular individual. It may result from more subtle conduct designed to create an irresistible ascendancy by imperceptible means it may be exerted either by deceptive devices or by material compulsion without actual fraud. It’s any species of coercion whether physical mental or moral which subverts the sound judgment and genuine desire of the individual, it’s enough to constitute undue influence’, and I feel like that captures it.
Judge Nesi: That really, that’s all of it, that really is. I couldn’t add anything to it other than you’re right. You know it when you- other than you know it when you see it and even then it requires a good hard look because things that might on the surface look like undue influence when you do drill down, aren’t necessarily there. I have to say the vast majority of undue influence cases that I’ve seen during my time on the bench and most certainly now that I do a number of them as part of my conciliation practice really have a hard time crossing that threshold. The majority of them ultimately the majority claims I think over the course of time were either dismissed by the court or result in a a settlement, when I’ve gotten them in my conciliation practice it’s not easy to prove, not easy to prove at all.

Elisabeth: And I’ll say in the cases that I’m involved in, you know typically after the the claim of undue influence has been made, although it’s not easy to prove when you get to court like if you’ve had experience with them that can be very upsetting because you’re seeing a vulnerable person, in my practice a person who’s you know had a progressive dementia or is dealing with other mental health issues and from the outside you can see how a path was laid for another individual to exert their influence over them. But again, like it can be hard to prove even in cases where I think that you know that it’s happened and you can see how vulnerable that person was.
Darian: One of the things that I’m hearing from both of you is that it has to do with the nature of the evidence that you have to bring forward and the fact that it’s, you know, mostly circumstantial evidence and I would be interested in hearing from from both of you, your perspective on what evidence is most compelling, you know, given that it’s not usually going to be direct, someone saying ‘oh yeah you know I went over there every day and I said if you don’t sign these papers I’m- you know, I’m gonna pull all your toenails out’ or whatever it is that that happens right? Like, what are the things that you’ve seen in your experiences that have been sort of compelling circumstantial evidence of undue influence?
Judge Nesi: Liz, do you want to go first?
Elizabeth: Yeah, I mean there’s a couple of cases that come to mind. One where you know often this happens when someone is is maybe at the beginning stages of the dementia so that they are able to form new relationships and can maybe form new memories. So there’s a piece of isolation where other individuals who had been consistently involved in an individual’s life are removed and that’s either because they live out of state and so they were only communicating by telephone or physically, you know someone is has moved the individual somewhere else or is just denying access, and then gradually starts either trying to

damage that pre-existing relationship that was in fact a good supportive relationship and because an individual has some type of dementia or is maybe a little bit paranoid and delusional can kind of feed into that thinking, you know, ‘my son is just after my money and that is why he’s coming to see me’ and I’ve seen cases where it’s a caregiver, I’ve seen cases where it’s a dysfunctional family where you know siblings are battling against each other. A recent case, a gentleman made changes to his will while he was in the hospital because he believed that his son was after his property and the daughters or the daughter was trying to make him change the will saying that the daughter is after his property, and there were medical records that showed like how distressed he was. The thinking if he didn’t sign this document that the state was going to take all of his property and the daughters were kind of drilling that, even though he already had an estate plan, he was then compelled because the son was not was not given access, the healthcare proxy was changed so he couldn’t come into the hospital to see his father and the daughters made these changes and were kind of repeatedly telling him and scaring him to make these changes. So you know that was a case that was pretty compelling and he’s he’s being given false information that he’s then repeating because the state was not going to be taking his money and then made these changes to the will based on what the daughters were telling him without having any input from the son who was then you know kind of cut out of the the estate plan altogether.
Judge Nesi: I think the fact of the isolation, and when I say isolation, keeping them from their usual contacts, is very often one of those red flags that I hear and give way to, but the other thing is look at the dispositions because things that might appear okay on their face can sometimes be can sometimes be unnatural dispositions given the history that the people have had. So you have to look closely, I think the ones that jump out at me the most is when the caregivers end up with the majority if not all of the estate that’s the most the simplest and most common one that I see occurring that really makes your ears perk up. Though I think within families is probably much more common, as Liz talks about but on the other hand very often I see the person who’s had no contact with dad from long before the time when he went downhill and the sister who’s cared for him ends up with most of the money if not all the money, and the son coming in at the last minute you know that’s a very different kind of circumstance and they’ll try to say she unduly influenced them when there’s a very logical reason why it didn’t turn out the way that they would have liked.
Elizabeth: Right. I don’t usually get involved in those cases that’s our great situation
Judge Nesi: Oh I tell you there’s nothing worse than siblings fighting. The worst divorces are not as bad as siblings fighting, they’ve got a whole lifetime to build up the anger.

Brian: Okay, so we’re going to drill down into some of the specifics of undue influence. What’s under unnatural disposition? What is susceptibility? What’s an opportunity? But in this opening section I thought I’d point out that California passed legislation, everything Darian said was not from legislation but from case law that’s developed over time, California has a law that the legislature passed and I’m just going to quickly summarize it. Undue influence means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. I think we’re going to have some fireworks on that word. So, the factors to consider would be the vulnerability of the victim, the influences of parent authority, the actions or tactics used by the influencer, and the equity of the result.

I think we need a statute here, I think we need the legislation in our state to get more deeply into what it is and what it isn’t rather than case law developing it. But someone here might disagree with that.
Darian: Well you already know that I disagree and I will say you know for our attendees, you should all go look at this legislation because, and hear me out, I don’t think it does anything to advance the law that our case law doesn’t currently do. It doesn’t cut off or clearly define any of those factors to be considered and they are already in our law and in fact it adds one that we don’t currently have which is this concept of inequity. And so, no Andrew there aren’t any written materials, sorry, but perhaps Michael can send this around later, but what I would say is that the idea of inequity I think invites more litigation than we currently have on this issue because it doesn’t get to the unnaturalness of it. It gets to an idea of what’s fair and it’s fair according to what? And so I don’t like this legislation I wouldn’t like to see it in Massachusetts, but I hear you that maybe some legislation would be useful but I would like to see it incorporate our established case law on the issue and not introduce new concepts that invite litigation for families that are already sort of going through the turmoil of these types of cases. And I will also just say it’s very expensive litigation, right, and so we don’t want to generate that, right.
Mike: Just one thing, I will send that material out to everybody later. Another question that came in, one that really probably can’t be done right now but people are interested if there’s any case law, you were talking about how we don’t have legislation but we have case law pointing to this, and if there are any cases I could send out I would do that as well. So, if you want to let me know I’d be happy to take care of that, thank you.
Brian: There are plenty of cases, sure.
Judge Nesi: There’s plenty of cases, well one benefit of having some legislation as opposed to our accumulated law through the case law is to lay out a clearer path for the judge who’s going to hear the case I know I shouldn’t say this but there’s an awful lot of judges who don’t focus a lot of attention on equity and probate cases and you know aren’t going to be as up to speed on the nuances of the case law and it could be helpful as a pathway for them when dealing with the cases to have some kind of statutory guidebook. The trouble we have is that our case law and our application of it is going to have a tremendous amount of discretion as it would under any statute but I think there may be and I think as a result of that you may get different outcomes depending on the judge and how they perceive things. You’re always going to have that in any case which is why so few cases go to trial in the end but some legislation may help to bring us closer to a center line on some of the dispositions.
Brian: Yes, I had one case that went all the way to trial and it should have been struck right at the beginning. You know, there was no allegation that held water. So my question, one of my questions here is, ‘is it better to get these undue influence cases moved to the fiduciary litigation session where the judge is more specialized?’ I mean my tendency is to want to do that. Darian, what do you think?
Darian: I think it depends on the case and also the facts of the case and the complexity of that case will determine whether your application would be accepted in the first instance, and I guess I wouldn’t say you know that they belong in the FLS but the right case, sure. I mean the thing, I just want to pause on the legislation because I just want to stay here while we’re being recorded if we’re putting together legislation I want to be on that committee. This California, this statute isn’t doing it for me.
Judge Nesi: The problem of course right now on the issue of the FLS is unless things have changed in the last week or two I believe they’re in a holding pattern and not accepting any new cases because the two judges, both of whom have been you know, are serving as recalls after their supposed retirements, they are really overwhelmed with numbers and the judges are very willing it seems out in the field to give the cases up to that session whether they’re the kind that are complex enough that should go there or like the ones Darian kind of alluded to where there’s no reason why it can’t be handled appropriately in a regular session. But for the complex cases that’s the place to go in my opinion.
Brian: Okay, all right. So Tony, what’s the minimum that you think should be in an affidavit of objections to survive a motion to strike? I know that’s kind of a general question but-
Judge Nesi: It doesn’t get any more general. Well I have to say you need specificity you know, just broad allegations are just never gonna cut it. You really need to have facts that can be pointed to or facts, obviously facts are arguable but you need specific things to get past that initial point and you need to have enough of them. I mean it just has to be more than ‘why would he ever do such a thing it’s crazy’.
Brian: What if you need discovery to get those facts?
Judge Nesi: Well you know, I find in a lot of the cases that I see now and when I was on the bench, the attorneys either stipulate to an extension for the period of time to file the statement of objections or they get a court order extending the time for filing the statement of objections because I think you’re right, it’s if you’re that son in California who’s been cut out, it might be hard to get all the things you need to survive that motion to strike or the motion for summary judgment. So, I think that’s a good point.

Brian: Okay, all right, so let’s move on to the next segment which is, ‘what is an unnatural disposition? Is that an inequitable result?’ Okay, so there’s a case there is a case where a recent person in the scene received most of the estate and the court ruled that the neighbor who was involved in their lives should have inherited instead. Now on that, when I think of an unnatural disposition I think of your heirs at law and in fact there’s a law review article written by a BC Law professor from ’97 that said that’s the case law, unnatural means not in accordance with the heirs at law. So you know you got a court ruling that it was unnatural not to leave it to the neighbor. How is that not an inequitable result analysis?
Darian: Are you talking about Moretti?
Brian: I don’t remember the name of the case.
Darian: So Moretti is the one, I think I’m getting this right, Moretti is the one where there’s an elderly man that has no biological family, not married, no kids, he’s got this neighbor and friend who goes on vacation. The man has a stroke or some acute sort of health event and then requires full-time care, is that ringing a bell for you?
Brian: Yeah that’s that sounds like the case.
Darian: And so what she does is, she was working at some health center and someone that she counseled at the health center was housing insecure, she moves him in and then this guy takes over the gentleman’s life including his finances, getting him a new lawyer, changing the disposition of his will, and so there you know we’re not looking at facts where the neighbor is inheriting over family members who are active in the person’s life, we’re looking at his support system being cut off by a relative stranger to him. And so I would say that is unnatural because it’s unnatural in the course of that person’s life and how they had organized their relationships and support system and so that would be you know that’s what that means to me, but to your point it is also inequitable not that I think that should be the standard, but it is inequitable because it’s this person who has put in a lot of care-time, care-hours, like emotional capital into this relationship who was isolated from the elder at the end of his life by this person that she hired to help him.
Judge Nesi: I do think that the fact pattern in which the person changes an existing estate plan to a new one versus the person who just has one will which is allegedly the result of undue influence are very different cases. I think they’re very different cases and I think in some ways the fact pattern you described Darian is the easier case to parse out than the initial estate plan which is skewed somehow.
Darian: I agree with you and I also think another really difficult case to parse out is the fact pattern where somebody was in the habit of regularly changing their will. Right, so they’re doing it all the time and it’s just like flying back and forth I think that would be, that’s a harder sort of case to litigate.
Judge Nesi: Yeah, yeah.
Brian: I think somebody who doesn’t have their own children, their own issue, is more likely to not care about who inherits or to, you know, to change that. I’m regularly meeting with people who don’t know who to leave it to. So those are the people who I think are vulnerable. I don’t want to transition to the next section yet, but I think it would be harder to determine what’s unnatural for those people.
Judge Nesi: Brian, didn’t you once tell me a story about somebody who said, ‘Well why don’t I just leave it to you?’
Brian: Yeah!
Judge Nesi: There’s another thing, one of our conversations.
Brian: Yes, she had CDs that were all reinvesting and I showed her that she could use the money instead of reinvesting it and go to assisted living and she was so thrilled she wanted to leave everything to me.
Darian: No, the answer is no!
Brian: Well it had to be no, you know, and she said, ‘I can’t do that no way!’ and it wound up going to charity.
Darian: Yeah, you know Brian that’s not an unusual thing that happens and in fact I have an elderly client who has done the same thing and it’s just like, no I can’t, we can’t do that, like it violates every ethical rule that I’m bound to follow, right, and it can be kind of heartbreaking for them because I think that they’re trying to give a gift but I think it’s important for us to like remind our fellow practitioners that that’s always a no.

Judge Nesi: Just yeah, just sending her to somebody else to do exactly that is not a good idea.
Darian: Just no, no.
Brian: Yeah, so when I said no she said ‘how about if I leave it to your son, now is that okay?’
Darian: No!
Brian: It was a no. All right so I think we’re in agreement that unnatural can be inequitable but not necessarily the reverse.

Darian: That’s what you’re saying, sure.
Brian: Okay all right look I think I worked on her enough. All right so let’s move on to susceptibility, which in the California law is referred to as vulnerability, and I think both of those terms are fairly similar and let’s let Liz weigh in on this.
Elizabeth: Yeah, so I mean in many of the cases that I see the vulnerability is a result of some type of dementia, Alzheimer’s disease, vascular dementia, dementia because of Parkinson’s disease, where the individual’s memory is impaired but then also their reasoning becomes impaired as well, those tend to be the two biggest factors that really impact functioning in dementia and impact decision making and then make a person more vulnerable. So as an example, like if you have someone that’s kind of moved in and is isolating the elder, and if they had a regular Sunday phone call with their cousin or son or niece or whoever and that phone call stops, if they have memory impairment they may not realize that that phone call has stopped or if it stopped they may not be able to question like, ‘Why haven’t I heard from Susan in a couple of weeks?’ Their memory is impaired, they’re not able to recall kind of what their regular routine or who their regular contacts are and it’s a result of this- whoever the perpetrator is, of isolating them and cutting them off from their natural heirs. I mean similarly one of the factors I think that can make that even more complicated is that a lot of folks that I see also have a significant hearing impairment and so it’s hard for them to talk on the phone or to be able to have a conversation on the phone they may you know just not have a lot of phone conversations in that regard so that also makes it easier for them to be isolated. So it’s a combination of factors in terms of impaired memory, impaired reasoning, impaired judgment that they can’t question and recall their regular relationships, their regular routine even if they had a previous estate plan or who their attorney might be or who might have been named in their estate plan previously. That makes that person really like, that’s a ripe situation for someone to come in and start to influence them to go in a particular direction, and I was involved in a case where an elderly woman was very close with a niece but the niece didn’t live nearby but they did communicate regularly. The niece lived in Florida and the elder was up here but they would always see them when they traveled through or you know tried to have conversations. This elder’s hearing became impaired and she became increasingly demented, not completely incapacitated but certainly there was an element of a dementia there and then another individual kind of came in who claimed to be a long-time friend but it was not; it wasn’t clear that this person ever actually knew them but kind of preyed on their giving personality, this woman’s giving personality and her friendliness and gradually led this woman to believe that this new person that came into her life was a long-time friend and the estate had been changed a couple of times, so to your point Darian, it wasn’t completely unusual for the estate to be changed but it was changed significantly so that at the end the niece, who had been initially named to be the primary heir, was not cut out of the will but was left like ten thousand dollars where she was supposed to have been given you know well into the six figures and inheriting property. So that was a case where it was a combination of a dementia, a hearing impairment, and isolation that made this particular woman extremely vulnerable for someone else to come in and you know exert their influence on them and their wishes.

Brian: Is there a particular lobe of the brain that you’d be concerned about like executive functioning?
Elizabeth: Well that’s the frontal lobe, that’s executive functioning. Yeah, I mean it tends to be a little bit more diffused so I mean memories in the executive function, the memories is also partly frontal lobe, the hippocampus is part of memory so you know the specifics of the diagnosis aren’t necessarily that important, more so the nature of the impairment. So in terms of vulnerability, I come in typically later in the case after it’s already happened and so trying to go back in time to figure out when this might have started that’s one of the challenges and one of the challenges I think, as Tony said, in like proving it because you can’t really always say when the person actually became vulnerable because you’re seeing them often much later after it happened.
Brian: So the frontal lobe doesn’t develop really until you’re what, 25 completely, am I incorrect on that?
Elizabeth: Yeah I mean you’re inside yeah that’s why they say ‘go easy on the teenagers because they’re frontal lobes aren’t-‘
Brian: Yeah, so someone could inherit at age 18 as an adult in Massachusetts and we could have an undue influence case for those purposes. Well let’s say you have a drug addict parent who you know just makes the kid make the money joint and then uses the money, so it’s possible to go undue influence there too.
Elizabeth: Yes, I mean I tend to be more on the other end of the spectrum but absolutely yes you know, I think that would also be, I don’t know if that would be an easier or harder case to prove if it’s, especially if the 18 year old is living with the parent.
Judge Nesi: Yeah, I’ll tell you though, it’s funny you say that fact pattern it’s not undue influence specifically but boy the number of cases that I have seen and continue to see with convenience additions to bank accounts not being a gift or being a gift, boy I’ll tell you what, you swear comes up on every single case or many many case.
Darian: Well judge, do you think that that’s because people are trying to do work arounds, work around the probate process and so they end up actually generating litigation about these?
Judge Nesi: Absolutely. Yeah, absolutely that’s part of it. I mean very often it’s just, you know, it’s meant to be a convenience account I think and I wouldn’t try to put a percentage that I see one way-

Brian: Oh, I think he froze.
Darian: Well I’ll help him, I think it’s 90/10.
Mike: Judge Nesi your voice dropped out, can you hear me?

Everybody else there?
Brian: Yeah he dropped out.
Darian: Oh I think maybe his headphones died.

Brian: Okay, well I was just going to ask him whether we need an expert in a case like this. What do you think Darian?

Darian: Well I’m going to give you the answer I always give defense of case. So I think you know like when would I call Liz, well she knows the answer to this, I will call Liz when I think that there is some aspect to the undue influence, the vulnerability of the person who’s been influenced that has to do with their cognition. And if I want an expert to opine by a post-hoc review of that person’s medical records and doctor’s notes, you know and maybe if she’s willing to do it or thinks that there’s value in interviewing sort of collateral folks who are involved in their life then that would be the time I would call somebody like Liz to talk about that. I think that some of these alternative fact patterns that we could come up with are sort of harder to prove, like you know your 18 year old living with a parent with a convenience account. I mean I guess you know maybe we would find some expert in in young developing brains and perhaps that would be an appropriate expert for something like that. There’s another type of fact pattern that I’m really interested in and in particular I’d love to know if Judge Nesi, and I guess Lizzie wouldn’t have seen this, but the patterns that deal with someone who has good cognition but is just physically frail or you know has some sort of dependency on drugs or alcohol or you know has chronic anxiety or depression, those are the cases that I think are particularly juicy and I would love to hear more about your experiences with them.
Judge Nesi: Well excuse me
Darian: Did you hear my joke? I made a joke for you.
Judge Nesi: No I missed it, sorry.
Darian: When you said you weren’t going to give percentages of the convenience accounts I said 90/10.
Judge Nesi: 90/10 which way? They’re 90 convenience or 90 estate planning?
Darian: 90 percent convenience.
Judge Nesi: Yeah I would say that that’s exactly right I’d say they’re much more likely to be for convenience and anyway. As to that, I can’t say that I can think of many examples that fit what you’ve just described, but could I see the circumstance as being one that would raise questions and possibly be a situation where the undue influence could be exerted? Sure I definitely see that, I can’t think of examples in my, from my head but you know the physical frailty very often goes along with the hospitalization or the isolation of the person and often that goes along with the quick change of the estate plan with a new lawyer that the relative brings in that has never met the person before. So anyways-
Brian: It could be legal-
Darian: But for some of those alternative fact patterns would you be looking for a particular type of expert or expert testimony in general about the effect of a frailty, or the effect of diagnosis, the effect of an addiction things like that?
Judge Nesi: It certainly couldn’t hurt. I’ve seen plenty of people been able to prove undue influence without an expert opinion or medical opinion coming in. However, when you’re really talking about the diminished capacity that creates the opportunity I think it really is helpful no question about that, somebody to parse through properly the medical records and tell us what they really mean.
Elizabeth: Right, yeah. I think that the isolation piece is key both in the physical frailty but also in the depression or in the anxiety if it’s preventing someone from leaving their home. Not so much the physical frailty but both a significant depression and a significant anxiety can also impact cognitive functioning, can impact memory, you know it’s what we used to call like a pseudo-dementia that they’re presenting as more confused but it’s because they’re depressed or anxious and then when they’re no longer depressed or anxious they’re presenting as mentally clear. So, you know I haven’t seen cases where it was purely depression or purely anxiety but I think the fact, the thing that all those have in common is the the isolation piece and the opportunity for a person to come in and exert their influence.
Judge Nesi: I think we had a question from somebody asking about what the SJC has said about the necessity of expert testimony. I don’t recall a case that specifically says that you have to have expert testimony.
Brian: No.
Darian: No, neither do I.
Brian: Okay, so we’ve pretty much covered the next segment which is ‘When do you have an opportunity’, and we’ve talked a little bit about isolation and choosing professionals. Anybody have anything to add to that?
Elizabeth: Well I think you know there’s three different, I mean if you’re dealing with an elder with some type of dementia that you could be calling a neuropsychologist, a psychiatrist, or a neurologist, any one of those three would be offering a slightly different perspective, so I think if it’s a person that’s- and then you also have to be thinking about ‘is this a postmortem case or is that is the victim still alive?’ But each one of those individuals is going to bring a different perspective and be able to offer something different in terms of of their expertise. So, the psychiatrist, if you have a case where it’s someone who is more purely mentally ill like a schizophrenia or depression then without a cognitive component the psychiatrist may be the best person to do that, if there is more of a cognitive piece and particularly if the individual’s still alive then the neuropsychologist I think is probably the best way to go. Mainly because it the neuropsych eval. offers a lot of objective information and an objective you know data and scoring and performance and norms based on age and the neurologist may be the best if you’re looking at more of a combination of both some physical impairment caused and cognitive impairment but that’s caused by a neurological illness like a Parkinson’s situation. So I think that the specifics of the case should/may dictate which direction you want to go as far as which expert you want to have.
Brian: Okay, well this is not even in the outline or it’s out of order but let me just follow up with, I have somebody that I’m doing something for who’s on their deathbed, I don’t have time to call you how do I preserve the evidence that’s needed? I have a checklist that I’ve gotten from many mental status exams but what can we do, what kinds of questions should we be asking to try to preserve whatever evidence that we can gather at that time?

Darian: So hopefully Brian if you’re at their deathbed it’s not the first time you’ve met with a person and that would be you know the the biggest tip that I would give someone in your situation, that hopefully you’ve met this person before, you’ve met them alone, you have a good sense of what their estate looks like and you know that they know what their estate entails and that you have a good sense of what their relationships are with the people who will inherit, right. And then the other thing that I’ve been discussing with with some of our brothers and sisters is this idea about recording the signings when we’re uncertain about whether there’s going to be litigation that follows or if we think there will be litigation that follows and recording that signing where you’re going through the document and the person is telling you what the disposition is, what the estate looks like and you can have a visible a visual representation of the state at that signing. And then the other thing I would say is I hope your file notes are really immaculate because you know your file is going to be really important evidence in later litigation for your understanding of that person’s capacity and what they shared with you.
Judge Nesi: I have to say in following up on what you just said Darian, I remember a trial I had where they took that precaution of recording the signing and the lawyer did a great job in presenting and getting the person to articulate exactly what was going on and I’ll tell you it made the rest of the evidence people had you know pale in comparison, it was just so well done. Of course having the person say yes or no to questions is not getting you anywhere when you do the video tape, they have to articulate and of course if you’re in a deathbed situation certainly that’s not an easy, that’s first of all it’s not easy to organize but you know it’s in the case of someone where you think there might be litigation in the future, I don’t see the downside of it if you’re comfortable with what you’re recording.
Elizabeth: I think the why is important, like why if they’re making a change in particular, who are the players and if they’re making a change why is this person no longer benefiting and have that recorded so that you can see that it’s their own words and their giving you an explanation. I mean I think the trick comes in is that like, I was involved in a case where there was a recording and there was isolation and the why was because I don’t see that person anymore, but they weren’t seeing that person anymore because they were being isolated. So they were able to give an explanation, so I don’t know if that was helpful or not.
Judge Nesi: May not have helped in that case, yeah.
Elizabeth: Right, the why was part of the undue influence so.
Darian: But I would argue that is helpful in getting to the truth right?
Elizabeth: Yeah.
Darian: If you have a recording of somebody, you know irrespective of our advocacy positions, if you have a recording of somebody and they don’t know why or they don’t know what they’re doing and it’s recorded and we have it, then we can have some confidence that we’re getting to the right result even if it’s maybe not the result that our particular client wants. And I know this is it’s terrible to say but I don’t see there being a downside to having a recording if what you’re doing is on the up and up, right? It’s only bad for you if you’re doing something shady.
Judge Nesi: One interesting thing, here’s a question that just occurs to me, what’s your obligation if you end up in litigation for disclosing the fact that the recording exists if nobody asked specifically that question? Let’s assume you do the recording and it doesn’t go well and the tape still exists or the recording still exists, what’s your obligation with regard to that when it comes to litigation? I don’t know that we have to find out.
Brian: What you’re up to what’s your obligation when you know it didn’t go well? Should you ask the client, ‘Can I delete this right now?’
Darian: No I but if it doesn’t go well Brian, wouldn’t it be your obligation to pause and say, ‘Does this person really understand what we’re doing and can we go forward with the signing?’
Brian: Right, yeah.
Judge Nesi: Right the lawyer has to be careful.
Brian: This is, it’s part of our outline, I’m just going to skip ahead to it, ‘Comment six to the Mass rules of professional conduct’. Rule 1:14 says you have to consider and balance the ability of the client to articulate reasoning leading to a decision and the substantive fairness of the decision. So, we shouldn’t just be doing what the client wants, we should be finding out why they want to do it because if we can get a why, if there’s reasoning, then we can help sustain
what they want. It won’t get tossed out as being inequitable or

All right, and there was a case back in ’93 Logotheti versus Gordon that said that attorney owes to the client,
you’ve got to reasonably believe that the person’s competent and free from undue influence before you do something because that’s part of your undivided loyalty to the client. So, I think we have a duty to find this out before we execute documents. Tony, anything to add on that?
Judge Nesi: I don’t disagree, I’m not going to comment on what the lawyer’s duty is but it makes certainly good sense, good sense to me, it’s just amazing to me the number of times I have seen the family member who’s going to benefit making the arrangements with a new lawyer who the person has never met before and getting a will drafted with not even a first draft reviewed with the client and then presented to the person in the hospital. I mean it amazes me how often it occurs and you and if there was ever a fact pattern that raises every red flag it’s just the how, what were the steps that led up to that person signing that will, and I’ll tell you that that lawyer has an awful lot of explaining to do as to why this was a legitimate step that they took in getting that estate plan signed because you know it’s just a big huge red flag when that new lawyer comes in who hasn’t met with the client doesn’t know all those lists of things that Darian just went over or even half of them or even 10 percent of them.
Brian: Well doesn’t a lawyer have a duty to meet alone with the client?
Judge Nesi: Yeah, I can’t-
Brian: – Early. You know as a matter of practice we tell the children who make the appointment we’re going to meet with the parent alone and we lose a lot of clients that way because-
Judge Nesi: I think you have to.
Brian: They’ll just shop, they’ll just shop, they’ll go to some lawyer who’ll let them be in the room and do all the talking. Yeah you know, no.
Judge Nesi: I just again if they’re in the room a red flag you know big red flag jumps up especially if it’s an elder who has any history of a decline that the influence might have been exerted based on it. So I agree with your practice Brian, I just, yeah I’m amazed when it’s not done but it’s amazing how often it does happen though. That they’re in the room, they made the arrangements, they’re in the room and they’re getting the benefit.
Elizabeth: Those are the cases that I see.
Judge Nesi: No.
Brian: So that’s one rule we want to submit to all the lawyers listening, meet alone with your client. You know, the children – I mean how would you ever ferret out undue influence if you didn’t meet alone with a client? The child is going to do a lot of the talking at the meeting if you let the child come into the meeting and the parent who’s relying on the child is going to let the child talk. All right, so –
Judge Nesi: Just their presence, even if, just the fact of the presence of the child in the meeting, in the room I think is where the problem really starts, never mind who’s talking in the room, because you know if they are concerned and they’re susceptible and know that they’re gonna catch hell later if they don’t say all the right stuff I think having the child in the room is just bad.

Darian: That’s another reason why it’s important to meet with someone more than one time too because you want to get a sense that their desires aren’t changing based on time of day, who’s around, who brings them. You want to just get a general sense that like this is really what you want, okay, and tell me about it again and why and put that in your notes.
Brian: But the true undue influencers are not going to let you have a chance to do that, right they’re going to you know, they’re going to take the parent somewhere else.
Darian: That’s true and then you know to get back to 1.14 Brian there’s a question then about if your flag is really raised that there’s somebody trying to do something bad, do we have a responsibility to do something for a prospective client who doesn’t actually end up becoming a client? And I think that that’s a real gray area, although I can tell you offline that we have a Mass NAELA colleague who did report elder abuse.

So, you know, we’re not without

resources to address if we think that there’s real harm being done.
Brian: Well one of the one other thing for lawyers to consider if they really want-, you know the practice of law is a profession but it’s also a business and if they don’t want to lose the client then they let the child into the room; they might wind up testifying for free for a long time and have a lot of unbillable time out there after explaining what happened. So it may not be worth it. So to go over probably the last thing which is, the burden of proof can be shifted in some of these cases. There are three cases Cleary, Moretti, and Rempelakis that read together say that if you have a power of attorney that you’re using and you’re involved in all aspects of the transaction, (transaction is not necessarily an estate plan it could be a transfer of assets it could be a low market sale), and you’re benefiting personally then the burden of proof can be shifted to you to prove what happened. So how much proof do you need on that Tony, when you see that?

Judge Nesi: I don’t know that I can give an answer that’ll be thoughtful to be honest with you. I have thought about it before, I’ve seen circumstances where you know it’s the burden has had to shift over because of the power of attorney. But where the power of attorney is central to what’s going on and not just the fact that it’s out there it exists, I don’t think the fact that a power of attorney exists automatically shifts the burden, and maybe that was a case you and I had Brian way back when if I recall. But I think the power of attorney has to be somewhat implicated in what’s being done for it to really be the burden shift. You know I see just as often people who are trustees and if there was ever a clear case I think it’s more with the trustee than with the power of attorney but that’s just my view and I can’t say I’ve spent a lot of time researching it. I’d love to hear what you folks think about.
Brian: And what you just said is part of my argument that we need legislation. Maybe not exactly the California legislation but this this judge-made rule says you have to use the power of attorney or else we won’t shift the burden. So what if the person that sold their home and everything they have is made joint with the undue influencer? There’s no need for a power of attorney in that situation and they’re taking advantage of the situation using the money for themselves. We can’t shift that burden, well that’s what the case law has developed into saying you can’t shift in that situation, but given that situation, if the appeals court saw that, maybe they would change the rule. That’s why I think we need a legislative body to look at the big picture.
Judge Nesi: Or a case.
Darian: Yes right. I mean both are compelling avenues to get to the same gap and I hear you that there are other ways other than using a durable power of attorney to exercise control over someone’s assets and to benefit yourself. But there are also equitable claims that are available to litigants that aren’t undue influence, you can do unjust enrichment, you can do an intentional interference with inheritance, there are other ways to get to the same result until we have a case that tease it up for the SJC or the appeals court to give us a really good decision we can cite too.
Brian: But I think the legislature can look at the bigger picture. So let me give you an example, I say to my mother, ‘hey I have one kid, my sister doesn’t have a child, there are three of us, she has three issues, why don’t you split it three ways instead of two ways?’ Now, and that’s not under influence because I just suggested it. If I say it every day and then maybe it gets to the point where I’m being very pushy, but I didn’t benefit, I’m getting less now, is that undue influence?
Elizabeth: Well does your sister know?
Brian: No, I’m not going to let her know about this.
Darian: This is being recorded Brian.
Brian: My brother already died, it’s too late for me to pull this.
Darian: So I think that the focus in that fact pattern is going to be, what would your mother have done otherwise if she was exercising her own free will.
Brian: Right, but we can’t shift the burden here, right? I didn’t benefit.
Darian: No you can’t.
Judge Nesi: I don’t think so, no.
Brian: So what is this thing?
Darian: So are you giving people ideas on how to circumvent the case law in order to get unnatural dispositions without the burdenship?
Brian: Yes, yes, the subtitle of this program was how to commit undue influence

So maybe one last thing, fee awards after trial I mean there’s a possibility after a trial.
Darian: Totally.
Brian: You know, I mean I would assume it’s more likely after there’s been burden shifting that there’d be an award but-
Darian: Not necessarily because it only has to be- so if we’re going to use chapter 215 section 45 it only has to be a contested case and that the court just determines whether justice and equity require the fees to be shifted. So it’s a squishy standard, it’s available in a contested – what, why are you why are you shaking your head?
Judge Nesi: No no no no, I’m shaking my head because it’s just so subjective on the part of the judges.
Darian: Totally.
Judge Nesi: You know 50 probate judges 50 opinions on that all over the place
Darian: Yeah it’s available.
Brian: Yeah well it’s technically available.
Judge Nesi: Right, yeah.
Darian: I’ve gotten it yeah.
Judge Nesi: Since I have retired I’ve had more people complain to me about my way of awarding fees or not awarding fees when I was on the bench. You know when I’m with lawyers doing conciliations now they all want to let me know what they thought about how I did or didn’t give fees.
Darian: Yeah but I will just say that I like that it’s squishy because I think in the same way that I like that the case law is squishy, it allows you to make arguments that fit your facts and to be persuasive about those arguments, and so if you have a case where you had some person coming out of nowhere saying oh there’s been undue influence, they had nothing, you couldn’t get it out on the motion to strike and you end up spending a lot of money at the end of that case when the evidence was fairly clear that there was no one in undue influence. You could say to the judge, ‘hey Judge Nesi this whack-a-mole spend all this money and we have to spend money out of the estate doing this and we want them to pay it back.’

I think that’s lovely, so I’m all for the squish.
Brian: Okay that’s a good closing line.
Judge Nesi: And if I could have one closing line, be cautious about inserting in terrorem clauses because they can cut both ways for you even though now they’re recognized. I’ve seen funny outcomes with in terrorem clauses, that’s my closing comment.
Brian: Okay
Mike: All right.
Brian: Well I think we hit our time.

Mike: Perfect, well thank you.
Brian: Thank you all.
Mike: Yep thank you all so much for participating it was really fun and interesting and it was great to have you all here and I hope to see you all again soon and have a great holiday.
Darian: Oh thanks, I had a blast.
Judge Nesi: Thank you.
Mike: I’ll talk to you soon take care everybody bye.