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.”

Ten days before Norman Ely died, he executed a will that bequeathed personal property to Lisa Orth (his granddaughter), Dustin Ely (Lisa’s brother and Norman’s grandson), and Casey Orth, with Lisa and Dustin receiving equal share of the remainder. The disposition of property in this 2011 will stood in stark contrast to Norman’s 2004 will that divided Norman’s estate equally between his two sons (Mark and Rick), Lisa, and Dustin. Mark claimed that the will was the product of undue influence, but the Wisconsin trial court disagreed.

The Court of Appeals of Wisconsin, however, reversed the trial court’s order and remanded for an evidentiary hearing on undue influence. In particular, the appellate court determined that a rebuttable presumption of undue influence was raised because (1) Lisa had a confidential relationship with Norman; and (2) suspicious circumstances existed surrounding the execution of Norman’s will.

That Lisa had a confidential relationship was undisputed. Lisa had Norman’s power of attorney and managed his finances immediately preceding his death.

The suspicious circumstances are what we’re interested in. Here, the suspicious circumstances were:

  1. Lisa hand-wrote changes on Norman’s 2004 will;
  2. Lisa selected an attorney with whom Norman had no prior relationship and had a new will drafted;
  3. There was conflicting testimony about whether Norman accompanied Lisa to the first appointment with the drafting attorney;
  4. At the second appointment with the drafting attorney, Norman refused to leave the vehicle; and
  5. Norman provided no explanation for his desire to disinherit his two sons, Mark and Rick.

All this isn’t to say that undue influence was exerted over Norman, especially given that there was some evidence that Norman was “a rather forceful fellow and he got what he wanted.” It’s just that where this type of evidence exists, the trial court needs to go back and receive evidence and make findings of fact as to whether Norman was unduly influenced or whether Lisa is able to rebut this presumption of undue influence.