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“Suspicious Circumstances” Keep Wisconsin Undue Influence Case Going

March 4, 2013

Authors

Luke Lantta

“Suspicious Circumstances” Keep Wisconsin Undue Influence Case Going

March 4, 2013

by: Luke Lantta

In many jurisdictions, the existence of a confidential relationship can turn an undue influence inquiry on its head.  That’s because the existence of a confidential relationship – usually coupled with evidence of something else – can create a presumption of undue influence.  Under Wisconsin law, that “something else” is “suspicious circumstances surrounding making of the will.”  When you have a confidential relationship with suspicious circumstance, then a presumption of undue influence is raised, which must be rebutted by the proponent of the disputed will.

“Suspicious circumstances” seems like a fuzzy concept so we’re going to take notice when the Court of Appeals of Wisconsin finds that suspicious circumstances existed that precluded summary judgment on an undue influence claim.  In Estate of Ely (Ely v. Orth), the Court of Appeals did just that.  Let’s take a look at these “suspicious circumstances.”

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Should A Testator Explain Why She Disinherited A Child?

October 29, 2012

Authors

Luke Lantta

Should A Testator Explain Why She Disinherited A Child?

October 29, 2012

by: Luke Lantta

Hell hath no fury like a disinherited child.  Or, if not fury, then at least an appetite for litigation.

Many estate planners recommend against total disinheritance and instead couple a token distribution with an in terrorem clause.  That way the disinherited child stands to lose something if he or she pursues estate litigation.  Of course, that doesn’t always work.  Especially if the risk is greatly outweighed by the potential reward – say giving up a sure $5,000 for a possible $1 million.

So, what else can a testator do to ensure that his or her intent to disinherit is upheld if there is litigation?

In In the Matter of the Probate of the Alleged Will of Joan Pennella, a recent case out of New Jersey, we see the value placed by a court on the testator’s own explanation of why she disinherited two of her children.

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New Jersey Testators Do Not Need To Read A Will Before Signing It

May 29, 2012

Authors

Luke Lantta

New Jersey Testators Do Not Need To Read A Will Before Signing It

May 29, 2012

by: Luke Lantta

As baby boomers enter their 60s, eye disease and vision impairment are likely to become more prevalent in the population.  How might that affect estate planning and will contests?  Are there concerns if a testator cannot read the will he or she is about to execute?

We’ve previously looked at a case where a testator did not need to know the ‘mechanics’ of a will for it to be valid.  Now, we turn to New Jersey, where an appellate court has concluded that a will is not invalid simply because the testator did not read the document before signing it.

The facts of In the Matter of the Estate of Betsy A. Schnitzer are worth a read.  Likewise, the court spends a good deal of time discussing how undue influence presumptions work in New Jersey, which is particularly helpful for New Jersey practitioners.  But, we want

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