A guardian‘s job requires that the guardian be involved in the affairs of the ward. In turn, the ward likely is going to be dependent on and trust the guardian. Chances are – because Georgia sets an order of preference for persons eligible to become a guardian for a ward – the guardian also may be a close family member. Since people often like to put their family members into their wills as beneficiaries, a guardian may run into a situation where the ward names him or her as a beneficiary of the ward’s estate. While that seems all well and natural, because of the fiduciary relationship between guardian and ward, that will may get a close look by a court.

So what is a guardian to do?

Distance herself from the estate planning process.

While there is no manual on how a guardian should get included in a ward’s will, it is helpful to look at what not to do. In Milbourne v. Milbourne, the Georgia Supreme Court sided with the trial court in deciding that there was enough evidence that a guardian – who was also the ward’s sister – unduly influenced the ward in procuring a will to let the matter go to a jury.

Because undue influence cases tend to rely on cumulative circumstantial evidence and are very fact specific, each incident in itself may have not been enough to send the case to a jury, but, taken together, they were collectively sufficient in this case:

  • The fact that the ward had suffered brain damage;
  • Testimony that the guardian had “emotional control” over the ward;
  • Testimony of a guardian ad litem that the guardian induced the ward to fear long-term care facilities;
  • Testimony of a guardian ad litem that the guardian repeatedly stated that “everybody else had gotten paid, and it was her turn to get paid”;
  • Evidence that the guardian hindered the ward’s relationship with his daughter by, among other things, telling the daughter when she called that the ward did not want to speak with her or was not there and calling the police when the daughter visited the ward on his birthday;
  • Hiring a lawyer to write the ward’s will;
  • Driving the ward to the lawyer’s office;
  • Filling out a client information sheet at the lawyer’s office;
  • Possibly being present with the ward as he described his testamentary wishes to the lawyer;
  • Meeting with the lawyer without the ward; and
  • Paying for the lawyer.

Indeed, under these circumstances, the Georgia Supreme Court determined it did not even have to consider whether a rebuttable presumption of undue influence arose here when (i) a beneficiary under a will occupies a confidential relationship with the testator, (ii) is not the natural object of the testator’s bounty, and (iii) takes an active part in the planning, preparation, or execution of the will. Here, the “quantum of evidence” was sufficient to send the case to a jury without regard to any presumption.