The Georgia Court of Appeals recently decided another in a long line of cases on the issue of undue influence over a testator (in Prainito v. Smith, 2012 WL). As is the rule in Georgia, undue influence can be proved by circumstantial evidence, particularly when the subject, in a weakened state, is under the dominion of a strong influencer.
Undue Influence in Prainito v. Smith
This recent case involved a grandson who obtained sole possession of assets that his grandmother had intended to bequeath equally to five named grandchildren. After the grandmother died, a dispute arose among the heirs as to whether assets in a securities account and a certificate of deposit were part of her estate. The grandmother had executed a 1996 will leaving all of her money and investments to five named grandchildren, and specifically directed the grandson and another grandchild to “see to it that all the money will be divided equally.”
That same year, the grandmother moved from Florida to Georgia to be close to her grandson and another grandchild. She stopped driving and depended upon her grandson to take her everywhere. Soon after the move, she showed signs of slowing down, loneliness, and depression, but she repeatedly expressed her desire to share her money equally among the five named grandchildren. Eight years later, the grandmother opened a securities account on which her grandson was listed as joint tenant. She also purchased a certificate of deposit at another bank, on which her grandson was listed as beneficiary.
One month later, she passed away at the age of 92. After a trial, the jury found that the grandson had exerted undue influence over his grandmother and had engaged in actual fraud with the accounts. The jury verdict included an attorney fee award of $40,000. The grandson appealed.
The Court of Appeals found no error with the undue influence and fraud verdicts, but it reversed the award of attorneys’ fees.
Elements of Undue Influence and Fraud
In reviewing the evidence, the Court of Appeals noted that questions of undue influence are for the “fact-finder,” meaning the jury (or the judge, in the case of a non-jury trial). Undue influence may be shown by a broad range of circumstantial evidence. Where, as here, the testator is a person of weaker mentality, and the influencer dominates the testator in a relationship where he is able to exercise a controlling influence over the testator’s will, conduct, and interest, then undue influence may be presumed.
As to fraud, the estate had argued that the grandson committed fraud by misrepresenting to his grandmother his intent to divide the money in the accounts among the five grandchildren; the grandson contended there was no evidence of such misrepresentations. But the Court of Appeals held that fraud may be subtle, and circumstances, even if inconclusive when considered separately, may be enough when considered together to constitute proof of fraud. In this case, all the circumstances were enough for the jury to infer that the grandson had made the fraudulent statements, despite his denial.
The Court of Appeals denied the award of attorneys’ fees, however, because there was not sufficient evidence of the actual costs. The estate administrator had testified that the total legal fees also included billing for general administration items, in addition to the expenses of recovering the amounts in the accounts.
Attorneys’ fees are not often awarded, but any request for attorneys’ fees must detail precisely the costs incurred.
Millie Baumbusch is a partner with Gaslowitz Frankel. As a litigator who specializes in fiduciary matters, including disputes concerning wills, estates, trusts, and business interests, Ms. Baumbusch’s particular focus is on matters of contested guardianships and conservatorships.
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Gaslowitz Frankel LLC is Georgia’s premier fiduciary litigation law firm. The firm has earned a reputation for excellence across Georgia and the Southeast providing representation to individuals, executors, trustees, investors, shareholders, and financial institutions in complex fiduciary disputes involving wills, estates, trusts, guardianships, businesses, and securities. Contact us today at (404) 892-9797 or by e-mail at info@gaslowitzfrankel.com
