Suspicious conditions lead to claims of undue influence.
Susan R. Lipp | Dec 06, 2023
It’s not surprising that when a client changes the provisions of their will, especially to cut out some of their children in favor others, the client opens the door to family disharmony and litigation. A recent article in the New York Times focused on family drama caused by the discovery of two such conflicting wills signed by Darlene Williams. Darlene and her husband became famous after a fossilized Tyrannosaurus rex named Sue was discovered on their family’s ranch in South Dakota and ultimately resulted in Darlene and her husband receiving approximately $8 million as a result of the discovery.
According to the article, before her death, Darlene’s first will, written in 2017, appointed one of her daughters, Sandra Williams Luther, as the personal representative of her estate. Another article about this case noted that this first will included bequests to all of her children and grandchildren with very specific instructions. She planned to give each of her daughters a diamond ring and each of her grandchildren would receive equal shares of her estate. In a second 2020 will, Darlene designated Sandra to be her sole heir and the sole executor of her estate.
Needless to say, this didn’t go over well Darlene’s other daughter, Jaqueline Schwartz, who argued in court that the second will wasn’t legitimate and was legally flawed. She noted that Darlene was critically ill when the second will was signed and was susceptible to “undue influence.” Darlene floated in and out of consciousness and could barely speak. Another article noted that Jaqueline said her mother was critically ill and in hospice care when she signed the document without witnesses in the room due to COVID-19 restrictions. In her lawsuit, Jaqueline also claimed that Sandra and another sibling had mismanaged her mother’s funds.
The question of undue influence is a complicated one. According to Sandra Glazier, an equity shareholder in Lipson Neilson P.C., in Bloomfield Hills, Mich., a number of factors were present in this case that may have made Darlene susceptible to undue influence. They include references to her having been critically ill, floating in and out of consciousness, barely able to speak and having low oxygen levels and anemia. Glazier also notes that her isolation due to the COVID-19 outbreak could have affected her mental state and made her more vulnerable, an issue Glazier discussed in a 2021 article for Trusts & Estates. At the time of her death, Darlene was 88 and living in an assisted living facility which likely indicated she needed assistance with at least some of her activities of daily living—also factors indicating vulnerabilities. The fact that the second will excluded all but one of her children (and their descendants) seems inconsistent with a will that she had just written three years earlier, and a change like this without any explanation invites suspicion, says Glazier.
It's possible that Darlene Williams provided for some of the children outside of the will. One of the articles mentioned that court records show that $225,000 in proceeds from the sale of her home two weeks before her death went to Darlene Williams' son, Carson Williams.We don’t know if the other children omitted from the will received any gifts or other lifetime transfers, says Glazier.
Avoiding Family Disharmony and Litigation
How could this dispute have been avoided? An independent attorney would likely have advised Darlene that leaving three of her four children out of the will would only foster further fights and would likely break family bonds forever, says Glazier.
Also, she says, while it appears that COVID-19 restrictions didn’t permit the witnesses to be in the room when Darlene signed the second will, having Darlene reiterate the changes she had made and why to the witnesses, as well as indicating who her family members were and generally describing her wealth could have been helpful in countering claims of lack of capacity and undue influence. And, if the jurisdiction permitted no-contest clauses, such a clause in the will may have been useful in deterring future litigation.