Indiana Law Review Iii«liana Lair Revieii^ Volume 14 1981 Number 4 Breaking Wills in Indiana Thomas J. Reed* I. Introduction Will contests are a subtle form of malpractice action in which disappointed relatives attempt to destroy a lawyer's handiwork because the lawyer drew a will for someone who did not meet the test for competency. Probate practitioners are victimized by gnaw- ing fears that some overaggressive trial specialist will sabotage the well-laid testamentary plans of one of his or her solid and sensible clients by persuading a jury that the will was the result of undue in- fluence or duress. A sufficient number of will contests are filed each year to make the tactics and strategy of waging war on a will important to every practitioner. Disappointed family members may allege that the dece- dent's will was executed when the testator lacked testamentary capacity, was under undue influence of another, or was induced to make a will through fraudulent representations or duress.' Conse- quently, probate and estate planning specialists and other lawyers who regularly make wills and trusts might well benefit from a consciousness-raising session on the grounds for breaking wills and trusts under Indiana law. In addition, trial practitioners must learn to appraise the probability of success or failure in a will contest early in the client-contact stage of a case so that hopeless cases may be avoided. This Article will establish that the vast majority of wills attacked in Indiana as the product of an unsound mind, undue influence, fraud, or duress are eventually sustained by appellate courts despite serious mental aberrations of the testators who executed them. This conforms to the American judicial pattern which sustains wills when at the same time simple contracts would be avoided as the product of an unsound mind. This Article will also encourage the careful •Associate Professor of Law; Delaware Law School. 'For a detailed analysis of the American law of testamentary capacity see Reed, The Stolen Birthright—An Examination of the Psychology of Testation and an Analysis of the Law of Testamentary Capacity—A Modest Proposal, 1 W. New Eng. L. Rev. 429 (1979) [hereinafter cited as A Modest Proposal]. 865 866 INDIANA LAW REVIEW [Vol. 14:865 practice of preventive law by will drafters in order to minimize the possibility of an expensive, albeit unsuccessful, will contest when faced with the task of making a disinheriting will for a client. In ad- dition, this Article should be helpful to litigators who must bear the substantial burden of proof and presumption problems for con- testants in will contests. This study is based on a survey of 123 Indiana appellate deci- sions reported since 1854 involving wills contested on the basis of lack of capacity, undue influence, fraud, or duress. Findings from this survey appear throughout this Article in support of assertions made concerning Indiana will contests. II. Testamentary Capacity in Indiana Indiana courts have recognized five independent grounds on which a will may be avoided at law: lack of testamentary capacity, undue influence, fraud, duress, and want of due execution.^ Of these five statutory grounds for avoiding wills, lack of capacity, undue in- fluence, and fraud are the most significant. The English standard for testamentary capacity originated in two different court systems. The ecclesiastical court system ad- ministered those wills, or portions of wills, which attempted to transfer personal property. After 1540, the King's common law courts administered wills, or portions of wills, which devised real estate. The Statute of Wills,^ passed in 1540, stated that idiots and persons of non-sane memory were precluded from making a will at common law." The Canon Law impediments to a valid testament, the 'IND. Code § 29-1-7-17 (1976) provides in part: Any interested person may contest the validity of any will or resist the pro- bate thereof, at any time within five (5) months after the same has been of- fered for probate, by filing in the court having jurisdiction of the probate of the decedent's will his allegations in writing verified by affidavit, setting forth the unsoundness of mind of the testator, the undue execution of the will, that the same was executed under duress, or was obtained by fraud, or any other valid objection to its validity or the probate thereof; and the ex- ecutor and all other persons beneficially interested therein shall be made defendants thereto. The statute and its predecessors have been interpreted to include a cause of action for undue influence under the rubric of want of due execution. See, e.g., Barr v. Sumner, 183 Ind. 402, 408, 107 N.E. 675, 677 (1915); Wiley v. Gordon, 181 Ind. 252, 258, 104 N.E. 500, 502 (1914); Clearspring Township v. Blough, 173 Ind. 15, 24-25, 88 N.E. 511, 514 (1909); Willett v. Porter, 42 Ind. 250, 254 (1873); Reed v. Watson. 27 Ind. 443. 445 (1867); Kenworthy v. Williams, 5 Ind. 375, 377 (1854); Kozacik v. Faas, 143 Ind. App. 557, 565, 241 N.E.2d 879, 883 (1968). 'The Act of Wills, 1540. 32 Hen. 8, c.l. 'The bill concerning the explanation of wills, (1542-43), 34 & 35 Hen. 8, c.5, § 14. This statute provides in part that "wills or testaments made of any manors, lands, tenements, or other hereditaments, by any . . . idiot, or by any person de non sane memory, shall not be taken to be good or effectual in the law." Id. I 1981] BREAKING WILLS 867 most important of which was "defecta mentis sua" (unsound mind), were enforced by the ecclesiastical courts.^ By the 1780's, English courts had devised a legal test for testamentary capacity. The testator had to be aware at the time of executing the will of those persons who would be intestate successors. The testator also had to be aware of the components of his or her estate and its general value. While keeping these elements in mind, the testator had to be able to make a rational plan for disposing of his or her assets at death by the medium of a will.'' The first two elements of this for- mula were forcefully stated in Lord Kenyon's charge to the jury in Greenwood v. Greenwood.^ The "rational plan" element was added by the case of Harwood v. Baker.'* This combined Greenwood-Baker Rule was adopted by New York in the early nineteenth century and passed into Indiana case law through the popular treatises on wills brought to the west by the nineteenth century lawyers.^ The two lines of authority, together with most of the baggage of the common law of property, passed into American law through the colonial courts and went west into the Northwest Territory in the 1780's. A. The Doctrine of Testamentary Capacity in Indiana Although some Indiana cases have tried to refine the standard Greenwood-Baker formula for determining testamentary capacity, most Indiana decisions restate the New York Court of Appeals' for- mulation of the doctrine taken from the leading mid-nineteenth cen- tury case of Delafield v. Parrish.^° [I]t is essential that the testator has sufficient capacity to '^The ecclesiastical impediments to execution of a valid will were: (1) propter defectum suae potestais (those who could not make wills, such as a son, a slave, or a monk, because of servile status); (2) propter defectum mentis (those who were mentally, defective, mentally retarded, madmen, or prodigals); (3) propter defectum sensualitatis (those who were blind, deaf, or dumb); (4) ratione poenalitatis (criminals in prison); (5) ratione dubietatis (those whose legal status was doubtful). For an elaboration of Canon Law impediments to making a will, see 3 W. HOLDSWORTH, A HISTORY OF English Law (5th ed. 1943). The first case to construe the provisions of the Statute of Wills relating to idiots and persons of non-sane memory was Pawlet Marquess of Winchester's Case, 77 Eng. Rep. 287 (K.B. 1601). That decision did little to interpret the statute. Later 18th century cases grappled with the appropriate instruction to the jury concerning this provision of the Statute of Wills. See, e.g.. Greenwood v. Greenwood, 163 Eng. Rep. 930 (K.B. 1790). '163 Eng. Rep. 930 (K.B. 1790). Greenwood is in reality a report of Lord Kenyon's charge to the jury in a will contest, containing the current state of the law of testamentary capacity as evolved in trial courts over several centuries. '13 Eng. Rep. 117 (P.C. 1840). 'See, e.g., L. Friedman, A History of American Law 202-27 (1973) for a descrip- tion of this process. '"25 N.Y. 9, 9 N.Y.S. 811 (1862). 868 INDIANA LAW REVIEW [Vol. 14:865 comprehend perfectly the condition of his property, his rela- tions to the persons who were, or should, or might have been the objects of his bounty, and the scope and bearing of the provisions of his will. He must, in the language of the case, have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them. A testator who has sufficient mental power to do these things is, within the meaning and intent of the statute of wills, a person of sound mind and memory, and is competent to dispose of his estate by will." In order to adjudge that a testator had the requisite testamentary capacity when the will was executed, an Indiana court must find "Id. at 29, 9 N.Y.S. at 816. See also 2 W. Blackstone, Commentaries* 496-97. In- diana had no appellate decisions which articulated a standard for determining when testamentary capacity had been disproven until Bundy v. McKnight, 48 Ind. 502 (1874). In Bundy, jury instructions eight and nine concerning testamentary capacity were challenged on appeal and sustained in pristine form by the Indiana Supreme Court. The instructions read as follows: 8. While the law does not undertake to measure a person's intellect, and define the exact quantity of mind and memory which a testator shall possess to authorize him to make a valid will, yet it does require him to possess mind to know the extent and value of his property, the number and names of the persons who are the natural objects of his bounty, their deserts with reference to their conduct and treatment toward him, their capacity and necessity, and that he shall have sufficient active memory to retain all these facts in his mind long enough to have his will prepared and excuted; if he has sufficient mind and memory to do this, the law holds that he has testamen- tary capacity; and even if this amount of mental capacity is somewhat obscured or clouded, still the will may be sustained. 9. To enable a person to make a valid will, it is not requisite that he shall be in the full possession of his reasoning powers, and of an unimpaired memory. Few, if any, persons are in the full possession of their reasoning faculties when enfeebled by age or prostrated by disease. A large majority of wills are made when the testator is upon his deathbed, and when the mind and body are more or less affected by disease and suffering; nevertheless, a person prostrated by disease is capable of making a valid will, if at the time of its execution he has mind sufficient to know and understand the business in which he is engaged. 48 Ind. at 511. Indiana cases dealing with testamentary capacity tend to use the Bundy V. McKnight formula for stating the elements of testamentary capacity. Ramseyer v. Dennis, 187 Ind. 420, 425-26, 116 N.E. 417, 418 (1917); Barr v. Sumner, 183 Ind. 402, 415, 107 N.E. 675, 679 (1915); Wiley v. Gordon, 181 Ind. 252, 265, 104 N.E. 500, 505 (1914); Pence v. Myers, 180 Ind. 282, 284, 101 N.E. 716, 717 (1913); Irwin Union Bank & Trust Co. V. Springer, 137 Ind. App. 293, 295, 205 N.E.2d 562, 563-64 (1965); Hinshaw v. Hinshaw, 134 Ind. App. 22, 25, 182 N.E.2d 805, 806 (1962); Powell v. Ellis, 122 Ind. App. 700, 709-10, 105 N.E.2d 348, 352-53 (1952). 1981] BREAKING WILLS 869 that the testator: (1) knew the natural objects of his or her bounty;'^ (2) knew the nature and extent of his or her property (in general, what he or she owned or controlled and its approximate worth at the time the will was drafted);'^ and (3) was able at the time of mak- ing and planning the will to keep the two prior factors in mind and make a rational plan for disposing of his or her property after death.'" "^In Indiana, objects of one's bounty refers to the persons who would take the testator's property according to the laws of descent. This standard for limiting "natural objects of one's bounty" has been articulated in at least two Indiana appellate court cases, Egbert v. Egbert, 90 Ind. App. 1, 5, 168 N.E. 34, 35-36 (1929) and Jewett v. Farlow, 88 Ind. App. 301, 303-04, 157 N.E. 458, 459 (1928). In an earlier case, Bradley v. Onstott, 180 Ind. 687, 694, 103 N.E. 798, 800 (1914), the Indiana Supreme Court held that the jury may consider whether or not the proposed will disinherited the testator's children or their descendants, a natural object of bounty, which the law recognizes as natural objects of the testator's bounty. However, in Barricklow v. Stewart, 163 Ind. 438, 440, 72 N.E. 128, 129 (1904) the supreme court stated that the testator's mistaken impression that an individual would take an intestate share in his estate was not ad- missible on the issue of the testator's want of capacity. Indiana probably follows the majority of states in tying its notion of "natural objects of bounty" to intestate suc- cessors or persons possessing forced share rights in the testator's estate. See A Modest Proposal, supra note 1, at 456-57 for a discussion of this phenomenon in greater detail. "Indiana probably has adopted the rule that the ability to recall the nature and extent of one's property is determined more or less by the actual size of the testator's holdings at the time the will is made. Jewett v. Farlow, 88 Ind. App. 301, 306-07, 157 N.E. 458, 459-60 (1928). Indiana has also adopted the position of a majority of states, that one may not actually be required to recall all of his or her property when ex- ecuting his will. The law demands that the testator simply be able to do so. Id. at 307, 157 N.E. at 460. In Barricklow v. Stewart, 163 Ind. 438, 72 N.E. 128 (1904) the Indiana Supreme Court held that it was not error to exclude the inventory and appraisal of the testator's estate as evidence of the nature and extent of his property at death. Id. at 441, 72 N.E. at 129. '^The "rational plan" portion of the Greenwood-Baker rule in Indiana jurisprudence has been subdivided by the appellate courts into two types of verbal for- mulae. Most cases follow instruction eight in Bundy v. McKnight, which states that: [H]e shall have sufficient active memory to retain all these facts [natural ob- jects of bounty and nature and extent of his property] in his mind long enough to have his will prepared and executed; if he has sufficient mind and memory to do this, the law holds that he has testamentary capacity .... Bundy v. McKnight, 48 Ind. at 511. This model was approved by the court in Ramseyer V. Dennis, 187 Ind. 420, 426, 116 N.E. 417, 418 (1917); Wiley v. Gordon, 181 Ind. 252, 265, 104 N.E. 500, 505 (1914); and Pence v. Myers, 180 Ind. 282, 284, 101 N.E. 716, 717 (1913). It is essentially the same model as that adopted by the New York Court of Ap- peals in Delafield v. Parish. The variations on this theme include a significant number of cases which add language from instruction nine approved in Bundy v. McKnight: "[A] person ... is capable of making a valid will, if at the time of its execution he had mind sufficient to know and understand the business in which he is engaged." 48 Ind. at 511. This clause is added to the basic descriptive language cited above in Blough v. Parry, 144 Ind. 463, 467-71, 40 N.E. 70, 71-73 (1895); Dyer v. Dyer, 87 Ind. 13, 18 (1882); and in Lowder v. 870 INDIANA LAW REVIEW [Vol. 14:865 In uncontested proceedings for probate, the proponent of a will, by reason of the statutory provisions of Indiana Code sections 29-1-7-20^'^ and 29-1-5-1'** and the implied presumption of capacity arising from due execution,'^ carries the burden of proof on testamentary capacity by showing that the will was duly executed according to the provisions of Indiana Code sections 29-1-5-2'^ and Lowder, 58 Ind. 538, 542 (1877). Instruction nine in Bundy v. McKnight incorporated a standard applied to the test for appointing a guardian for someone. The instruction, in the context of the case, described the mental capacity of a very sick person. The in- struction was incorporated to explain to the jury what effect the terminal illness of the testator had on the execution of his will. Other variations on this verbal formula ap- pear in Ditton v. Hart, 175 Ind. 181, 186, 93 N.E. 961, 964 (1911) and in Whiteman v. Whiteman, 152 Ind. 263, 274-75, 53 N.E. 225, 229-30 (1899). Modern Indiana Court of Appeals decisions on testamentary capacity restate the language used in Bundy v. McKnight as the general formula for testamentary capacity in Indiana. See Irwin Union Bank & Trust Co. v. Springer, 137 Ind. App. 293, 295, 205 N.E.2d 562, .563-64 (1965); Hinshaw v. Hinshaw, 134 Ind. App. 22, 25, 182 N.E.2d 805, 806-07 (1962); Noyer v. Ecker, 125 Ind. App. 700, 709-10, 105 N.E.2d 348, 352 (1952). In essence, Indiana's courts believe that a testator must be able to make a rational plan for disposition of his or her property at the time of executing the will. "Ind. Code § 29-1-7-20 (1976) reads in part as follows: "In any suit to resist the probate, or to test the validity of any will after probate, as provided in section 717 [Ind. Code § 29-1-7-17] of this [probate] code, the burden of proof shall be upon the con- testor." This 1953 statute erased the learning built upon more than twenty appellate decisions in Indiana on the right to open and close in a will contest and the duty of the proponent to make a prima facie case on capacity and freedom from undue influence. See, e.g., Van Meter v. Ritenour, 193 Ind. 615, 618, 141 N.E. 329, 329-30 (1923) (burden of proof on contestant when will is admitted to probate); Johnson v. Samuels, 186 Ind. 56, 61-62, 114 N.E. 977, 979 (1917) (proponent may open and close when contestant files objections to will prior to probate since proponent has burden of proof); Herring v. Watson, 182 Ind. 374, 377, 105 N.E. 900, 901 (1914) (burden of proof on issue of capacity on proponent in pre-probate will contest). "Ind. Code § 29-1-5-1 (1976) provides in part: "Any person of sound mind who is eighteen (18) years of age or older, or who is younger and a member of the armed forces, or of the merchant marine of the United States, or its allies, may make a will." "In Indiana the proponent enjoys a presumption of capacity and of freedom from undue influence, fraud, and coercion on proof of the due execution of the testator's will. McCord v. Strader, 227 Ind. 389, 392. 86 N.E.2d 441, 442 (1949); Kaiser v. Happel, 219 Ind. 28, 30-31, 36 N.E.2d 784, 786 (1941); Herbert v. Berrier, 81 Ind. 1, 4-6 (1881). "Ind. Code § 29-1-5-2 (1976) provides in part: (a) All wills except nuncupative wills shall be executed in writing. (b) Any person competent at the time of attestation to be a witness generally in this state may act as an attesting witness to the execution of a will and his subsequent incompetency shall not prevent the probate thereof. (c) If any person shall be a subscribing witness to the execution of any will in which any interest is passed to him, and such will cannot be proved without his testimony or proof of his signature thereto as a witness, such will shall be void only as to him and persons claiming under him, and he shall be compelled to testify respecting the execution of such will as if no such in- terest had been passed to him; but if he would have been entitled to a distributive share of the testator's estate except for such will, then so much 1981] BREAKING WILLS 971 29-1-5-3/^ When a will contest is filed under Indiana Code section 29-1-7-20, the statute lays the burden of disproving testamentary capacity on the contesting party .^'' It follows that the contestant has the right to open and close in will contests^' and the proponent of a will is obliged to do nothing more than submit his will for proof under the forms of the Probate Code.^^ Upon proof of execution by one of the means provided for in Indiana Code section 29-1-7-13, the propo- nent has created a triable issue of fact and has carried whatever burden of going forward with evidence of capacity and freedom from influence, fraud, or duress is imposed by Indiana law. If a contestant successfully disproves any of the three elements of capacity ,^^ the court must hold the will invalid. 1. Testators Under Guardianship. — According to Indiana law, a person may be put under guardianship if he or she is "incompetent."^^ "Incompetent" is defined by the Probate Code as "a person who is . . . incapable by reason of insanity, mental illness, mental retardation, senility, habitual drunkenness, excessive use of drugs, old age, of said estate as said witness would have been thus entitled to, not exceeding the value of such interest passed to him by such will, shall be saved to him. (d) No attesting witness is interested unless the will gives to him some personal and beneficial interest. The fact that a person is named in the will as executor, trustee, or guardian, or as counsel for the estate, personal representative, trustee or guardian does not make him an interested person. "IND. Code § 29-l-5-3(a) (Supp. 1980) provides in part: The execution of a will, other than a nuncupative will, must be by the signature of the testator and of at least two (2) witnesses as follows: (1) The testator, in the presence of two (2) or more attesting witnesses, shall signify to them that the instrument is his will and either: (i) sign the will; (ii) acknowledge his signature already made; or (iii) at his direction and in his presence have someone else sign his name for him; and (2) The attesting witnesses must sign in the presence of the testator and each other. '"IND. Code § 29-1-7-20 (1976). ^'The right to open and close, which follows from assignment of a statutory burden of proof on lack of capacity, undue influence, fraud, duress, and want of execu- tion is significant in terms of the tactical position of the contestant. The contestant has the final argument to the jury and the chance to rebut the proponent's case. If this statute is applied rigorously, only the due execution of the will need be established by the proponent. 'Tor the procedure involved, see Ind. Code §§ 29-1-7-2 to -5, -13 (1976). With the advent of a self-proving will form in 1975, Indiana lawyers may open an estate and sub- mit an application for letters testamentary by filling out the required form for applica- tion for letters and by attaching the original will and the affidavit required by Ind. Code § 29-l-5-3(b) (1976). ^Tor a statistical breakdown of Indiana testamentary capacity cases, see appen- dices available from the publisher. '"Ind. Code § 29-1-18-6 (1976). 872 INDIANA LA W REVIEW [Vol. 14:865 infirmity, or other incapacity, of either managing his property or caring for himself or both."^^ An adjudication of incompetency could be res judicata on the issue of capacity to execute a will, but Indiana case law consistently refused to recognize the relationship between an adjudication of incompetency and capacity to make a will. Pepper V. Martiri^^ is a typical case. The testator was quite elderly. He ex- hibited many signs of senile psychosis and, pursuant to statute, was put under guardianship.^^ Nonetheless, the Indiana Supreme Court reversed the trial court's verdict for the contestant and admitted the testator's will to probate despite the fact that the will was made after the guardianship order became final. The grounds for reversal cited by the supreme court were errors in instructions.^** The court stated that proof that the testator had been under guardianship at the time he made his will was a "prima facie case" of lack of capaci- ty, but not conclusive on that issue.^' The court stated that the con- testant retained the burden of proof on the issue of want of capaci- ty. Therefore, once the proponent offered some evidence to rebut the adjudication of incompetency in the guardianship proceeding, the contestant had to produce more evidence of want of testamen- tary capacity if the contestant was to prevail. The court impliedly treated the presumption of continuing incompetency or insanity as a presumption that disappeared when contrary evidence, however slight or incredible, appeared to oppose it. When a court finds a person incompetent, it decrees that the person is incapable of making an ordinary contract.'" The predomi- nant view in the United States is that persons under guardianship may generally make a will although they are protected by the court from making an inter vivos gift of the same property.''' This dual standard cannot be rationally defended. "IND. Code § 29-1-18-1 (1976 & Supp. 1980). '^75 Ind. 580, 92 N.E. 777 (1910). "M at 584, 92 N.E. at 778. '7d at 582-83, 92 N.E. at 778. '"Id. at 583, 92 N.E. at 778. ™This result has long been reached by statute. The present Indiana Code section 29-1-18-41 (1976) summarizes the result of much appellate litigation: "Every contract, sale or conveyance had or executed by any one previously adjudged to be an incompe- tent and while under such legal incompetency shall be void unless such incompetency is due solely to such person's minority, in which case such contract, sale or conveyance shall be only voidable." ''See, e.g., Teegarden v. Lewis, 145 Ind. 98, 100-01, 40 N.E. 1047, 1048 (1895). Teegarden, however, held that the capacity to make an inter vivos gift is no greater than that needed to make a will. Id. The Indiana Supreme Court reaffirmed this posi- tion in Thorne v. Cosand, 160 Ind. 566, 569, 67 N.E. 257, 258 (1903), but the appellate court adopted a different test in Deckard v. Kleindorfer, 108 Ind. App. 485, 491, 29 N.E.2d 997, 999 (1940), holding that to make a valid inter vivos gift a party had to have 1981] BREAKING WILLS 873 2. Alcoholic Testators. — On\y one Indiana appellate decision ex- amined the post-death plans of a testator under the influence of nar- cotics.'^^ However, Indiana case law contains at least eight cases of alcoholic testators on appeal. Alcoholic testators generally received gentle treatment at the hands of Indiana appellate courts. In Derry V. Hall,^^ the appellate court reversed a trial court verdict and judg- ment for the contestant.^" Oria Dolan, the testator, died of nephritis and pneumonia in Indianapolis in 1926 at approximately the age of 53.^^ Mr. Dolan was unmarried and his closest relatives were some cousins, aunts, and uncles with whom he had very little to do during the last twenty years of his life.^*' His will, made at the hospital the day before his death, left the balance of his estate to several Roman Catholic charities.^^ The evidence disclosed that Dolan had been ad- dicted to alcohol and that Dolan exhibited some of the signs of alcoholic brain disease.^* The jury set aside Dolan's will as the prod- uct of an unsound mind but the appellate court reversed the trial court on the ground that the verdict was not supported by the "sufficient mind and memory to comprehend the nature and extent of his act and to understand the nature of the business in which he is engaged and to exercise his own will with reference thereto." ''Haas V. Haas, 121 Ind. App. 335, 96 N.E.2d 116 (1951). ^'96 Ind. App. 683, 175 N.E. 141 (1931). But see Swygart v. Willard, 166 Ind. 25. 76 N.E. 755 (1906) (case decided for the contestant with strong evidence of mental im- pairment). '^96 Ind. App. at 696, 175 N.E. at 145. ''Id. at 687. 175 N.E. at 142. '"/d. at 686, 175 N.E. at 142. The principal lay witness for the contestant was Jessie M. Kinney, a cousin from Muncie, who recited a fantastic tale. The testator had gone with her to the Chicago World's Fair in 1892. He locked her in a hotel room when Dolan (known as Dooley to his friends, and indeed, he signed the will under the name of Dooley) was in an alcoholic frenzy. He threatened her with physical abuse and starved her for several days before letting her go. Id. at 689, 175 N.E. at 143. Kinney had not seen Dooley since 1921, however, and her evidence, relevant to Dooley's mental impair- ment from excessive alcoholism in 1892, really did not provide the contestant with a lay witness who would say Dooley was without sound mind on the day of making his will. Id. at 693, 175 N.E. at 144. 'Id. at 688, 175 N.E. at 143. '^Id. at 690-91, 175 N.E. at 144. The medical evidence of serious pathology was very strong, probably the strongest evidence in favor of setting aside Dolan's will. The death certificate showed Dolan had died of acute lobar pneumonia, a complication of chronic nephritis. Dr. Albert Sterne, an alienist from Indiana University Medical School, testified that the decedent's condition was clearly the result of chronic, long term, excessive use of alcohol, and that such prolonged use of alcohol in excessive quantities would impair all the mental functions of the deceased, even when he was not drinking. Id. The appellate court discounted the medical testimony in this case against the testimony of twenty lay persons who were of the opinion that Dolan was of sound mind when he was last seen by each of them. Id. at 693, 175 N.E. at 144. This discounting effect is often encountered when lawyers review medical expert opinions in will contests. 874 INDIANA LAW REVIEW [Vol. 14:865 evidence, since there was a lack of any testimony showing that the testator was of unsound mind.^^ Yet, the evidence established Dolan's excessive drinking habits and showed that his death was caused by a complication of a chronic disease associated with acute alcoholism. Thus, the appellate court stretched judicial reasoning to favor the probate of Dolan's will without revealing its reasons for doing so."" 3. Senile Tesfaiors. — "Senility" is a lay term which usually describes one of two conditions: arteriosclerotic brain disease — a condition produced by insufficient blood supply to the brain caused by fatty deposits in arteries over a long period of time, and so-called senile psychosis — a non-organic mental condition which is clinically observed in people who are extremely old/' Contemporary medical opinion has recently been altered by studies which tend to show that some cases of "senile psychosis" may simply be the by-product of inadequate medical treatment for elderly persons who are con- fused disoriented, forgetful, or hallucinatory due to improper medi- cal care or neglect/^ The Greenwood-Baker Rule was derived from a judicial policy statement concerning the senile testator. It was in- tended to be a measure of the lowest threshold mental capacity for responsible activity in the understanding and execution of a will. It may be questioned whether the Greenwood-Baker Rule provides an adequate distinction between the wills of competent and of incompe- tent elderly testators who exhibit signs of senility. The majority of Indiana decisions in which the testator's mental state was described '7d. at 693-94, 175 N.E. at 144-45. The testator's physician had earlier testified that lobar pneumonia usually causes swelling of brain tissue resulting in impairment of mental faculties. In response to the hypothetical, including the usual swelling associated with pneumonia, Dr. Sterne opined that the hypothetical testator lacked testamentary capacity. The court held this was of no probative value because the facts used in the hypothetical were not established by the evidence. Id. at 144, 175 N.E. at 144. "The court seemed to be saying that the doctor could not conclude the decedent had impaired mental functions when he made his will because the physician assumed the decedent died within 24 hours after becoming infected. This fact had not been proved of record by an independent source, although it could clearly have been proven by the hospital records. "See A Modest Proposal, supra note 1, at 473-75 for an explanation of the distinc- tion between arteriosclerotic brain disease, which is not necessarily connected with the process of aging, and senile psychosis, a diagnosis used to classify elderly patients with symptoms similar to that of arteriosclerotic brain disease without the organic etiology of elevated blood pressure and periods of dizziness and blackouts and signs of arteriosclerotic changes in the large blood vessels in the neck characteristic of persons whose brains are not receiving an adequate blood supply due to fatty deposits in the smaller arteries in the cranium. "See, e.g., Douglass & Douglass, Decrepitude Preventions, 300 J. New Eng. Med. 992 (1979); Schwartz, The Spectre of Decrepitude, 229 J. New Eng. Med. 1248 (1978). 1981] BREAKING WILLS 875 were those involving senile testators. Indiana's cases include two groups of senile testators: "childish" testators and "recluses." A representative sampling of each type of senile testator illustrates the problems encountered with the Greenwood-Baker Rule in prac- tice. An example of a "childish" testator is found in Love v. Harris,'^^ in which the appellate court affirmed a trial court verdict and judg- ment for the contestant. William L. Cranston, an elderly bachelor, lived alone on a farm which had originally been co-owned by Cranston, his brother, and his sister.'*'* Cranston was the sole sur- vivor and had clear title to the farm. He was very dirty and un- shaven, and maintained his home in an incredibly filthy condition.''^ Lay witnesses described Cranston as childlike, stupid and rambling in conversation, unable to recognize acquaintances or relatives, and unable to remember when his tenant farmers had paid him rent.^^ Cranston, approximately four months after making a disinheriting will, was placed under guardianship.^^ The case went to the jury on the dual grounds of lack of capacity and undue influence exerted by Mr. and Mrs. Love, the neighbors who benefited from the 1950 will at the expense of Cranston's nieces. ''*' In Love, the testator showed significant signs of physical and mental debility. He was very old at the time his will was made. He exhibited a tendency to forget and was described as childish by lay witnesses. Indiana courts seem ready to accept jury verdicts in cases similar to Love which set aside a will as the product of an un- sound mind. Indiana will contests have also involved an inordinate number of recluses. In Cahill v. Cliver,^^ the testator, Jessica Sage, was a typical agoraphobe.^" She was a delicate person who supported herself by tutoring children in her home. In 1906, Jessica, age 35, married William E. McLean, a 74 year old gentleman. Mr. McLean died within a few days after the wedding, leaving Jessica Sage '^27 Ind. App. 505, 143 N.E.2d 450 (1957). For another strong case for the contes- tant, see Bell v. Bell, 108 Ind. App. 436, 29 N.E.2d 358 (1940). "M at 508-09, 143 N.E.2d at 452. «/d. at 509, 143 N.E.2d at 453. ''Id. "Id. at 510, 143 N.E.2d at 453. *'Id. at 508, 143 N.E.2d at 452. The neighbors also procured the lawyer who made the will, "talked for" Cranston during the will-making process, and, in general, dominated the testator. For a later case involving a recluse with character traits similar to those of W. Cranston, see Zawacki v. Drake, 149 Ind. App. 270, 271 N.E.2d 511 (1971). "122 Ind. App. 75, 98 N.E.2d 388 (1951). '"The term "agoraphobia" means fear of being in large open spaces. 1 J. Schmidt, Attorneys' Dictionary of Medicine and Word Finder, A-107 (1980). 876 INDIANA LAW REVIEW [Vol. 14:865 $250,000. Jessica's father, mother, and brother all died within a few years of one another. Miss Sage suffered a nervous breakdown after the death of her family members and retired within the four walls of the unpainted Sage home in Terre Haute, avoiding all contact with other humans and with the outside world. '^' In addition Miss Sage locked her cleaning woman in the parlour and prevented her from going freely from room to room without Miss Sage's presence.^^ Jessica Sage's will left the balance of her estate to her lawyer as trustee for the purpose of establishing a home for elderly men in Terre Haute as a memorial for her dead husband. Colonel McLean.^^ The trust instrument, though, varied greatly from the instructions dictated by Sage. It was alleged that she did not know of the changes when she signed the will. The trust instrument gave the trustee unlimited discretion to sell the assets to anyone, including himself, and allowed him to name his own successor trustee.^^ The beneficiaries were described as "worthy poor men," a description which could include anyone whom the trustee chose to designate as worthy and poor, such as friends of the trustee. The appellate court affirmed the trial court's verdict and judgment for the contestant.^^ The court treated the case as one in which an attorney had engaged in overreaching and unethical conduct in order to procure a sinecure from an elderly client. ^*^ The recluse syndrome, agoraphobia, is a condition which is not well understood by contemporary medicine. The exaggerated fear of other humans and of open space may have little to do with the legal test for testamentary capacity. It is equally unclear whether agoraphobia is related to any form of senile disorder. Agoraphobic persons may know and recognize the natural objects of their bounty, the nature and extent of their property, and be capable of keeping the two in mind long enough to make a plan for post-death disposi- tion. If. Organically Impaired Testators. — Indiana will contests in- clude decisions in which the contestant complained that the testator lacked testamentary capacity because the testator made his will on his deathbed while under the influence of debilitating physical ill- ness." Some of the older cases of this genre deal with a testator whose capacity was allegedly impaired by the great pain and agony ^'122 Ind. App. at 77, 98 N.E.2d at 389. ''Id. at 78, 98 N.E.2d at 389. ''Id. at 80. 98 N.E.2d at 389-90. ''Id. at 80-81, 98 N.E.2d at 390. "Id. at 81, 98 N.E.2d at 390. ''Id. at 76, 98 N.E.2d at 388. "See, e.g., Vance v. Grow, 206 Ind. 614, 190 N.E. 747 (1934); Oilar v. Oilar, 188 Ind. 125, 120 N.E. 705 (1918); Boland v. Claudel, 181 Ind. 295, 104 N.E. 577 (1914); Lud- wick V. Banet, 125 Ind. App. 465. 124 N.E.2d 214 (1955); Griffith v. Thrall, 109 Ind. App. 141, 29 N.E.2d 345 (1940). 1981] BREAKING WILLS 877 of a last illness such as cancer,^* a spinal lesion,''^ or uremic poison- ing.*"* Another group of older cases allege that the testator lacked testamentary capacity because the testator made his or her will while under the influence of high fever or a chronic, fatal infection such as pneumonia or tuberculosis/' A third group of more modern cases involves allegations that the testator lacked capacity because of brain damage due to stroke or other brain trauma.**^ None of the Indiana decisions dealing with organically impaired testators involved such organic psychoses as syphilis dementia (paresis), psychosis resulting from seizure disorders such as psycho-motor epilepsy, or psychosis from traumatic brain damage.*^^ The appellate courts were apparently unimpressed by recitations of the deceased's agony and suffering by lay witnesses, and by the impact that extreme pain, high fever, or other impedimentia had on the testator's mental capacity. Boland v. ClaudeP'* illustrates the fate of organically impaired testators in Indiana. Peter Claudel was a bachelor who lived alone on his farm. In June 1910, Claudel became ill and his kidneys failed him. He was taken in by a neighbor, Edward C. James, who looked after him. Claudel sank into a stupor from uremic poisoning. On June 10, 1910, with the scrivener guiding his hand, Claudel executed a will in Mr. James' home. Medical witnesses called by the contes- tant concluded that a person in such an advanced stage of kidney failure as Claudel could not have been mentally competent.''^ The In- diana Supreme Court affirmed a jury verdict and judgment for the contestant, giving due recognition to a well-constructed case which showed that the testator's mental condition had been severely im- paired by organic illness.**'' ^'Vance v. Grow, 206 Ind. 614, 617, 190 N.E. 747, 748 (1934) (testator with term- inal cancer made deatii bed gifts); Rarick v. Ulmer, 144 Ind. 25, 28, 42 N.E. 1099, 1100 (1896) (facial cancer). ^'Ditton V. Hart, 175 Ind. 181, 93 N.E. 961 (1911). ""Boland v. Claudel, 181 Ind. 295, 104 N.E. 577 (1914). •"See. e.g., Terry v. Davenport, 170 Ind. 74, 83 N.E. 636 (1908) (high fever during last illness); Vanvalkenberg v. Vanvalkenberg, 90 Ind. 433 (1883) (will made during last illness); Dyer v. Dyer, 87 Ind. 13 (1882) (testator signed will when extremely weak from pneumonia). "'See, e.g., Taylor v. Taylor, 174 Ind. 670, 93 N.E. 9 (1910) (will made after testatrix had suffered a severe stroke); Potter v. Emery, 107 Ind. App. 628, 26 N.E.2d 554 (1940) (testator had rheumatism, arteriosclerosis, and Bright's Disease (a form of chronic kidney disease)). "Tor a more detailed discussion of epileptic testators, see A Modest Proposal, supra note 1, at 472. "'181 Ind. 295, 104 N.E. 577 (1914). "Yd. at 298, 104 N.E. at 578. For a discussion of the science of toxicology and many of the side effects of commonly used hypertensive medications and pain killers, see 4 G. Gray, Attorney's Textbook of Medicine chs. 131-32 (3d. ed. E. Berger 1969). ""181 Ind. at 298, 104 N.E. at 578. 878 INDIANA LAW REVIEW [Vol. 14:865 The Greenwood-Baker Rule actually fails to cope with the prob- lem of the organically impaired testator. A person experiencing ex- treme pain, hallucinating during high fever, or suffering the impact of a seizure may be able to meet the Greenwood-Baker Rule yet be unable to orient himself or herself with respect to space, time, and person. At the same time, such organically impaired individuals do not meet the criteria for the "insane delusion" rule. Thus, unless the court is willing to inquire into the effect of pain, fever, or seizure on behavior and to develop a legal explanation for avoiding a will made by someone who was in great pain or delirious, it is highly probable that a will made by a testator who was unable to comprehend the nature of his or her acts will be sustained. B. Insane Delusion Indiana case law has recognized that a testator who meets the Greenwood-Baker test for testamentary capacity may, nonetheless, lack testamentary capacity if his or her will is the product of an in- sane delusion or monomania.**^ This rule grew out of the English case of Dew V. Clark*^^ in which the will of a physician was set aside due to a finding that the will was the product of an "insane delusion" that his blameless daughter was guilty of irregular sexual conduct. This rule, which was generated from eighteenth century psychology, in particular the writings of Jeremy Bentham,*^^ was introduced as a means of invalidating a will made as a result of "partial insanity."^" The type of delusion which can result in the invalidation of a will is a delusion about an object of one's bounty which leads the testator to exclude that person from the will. The test for the presence of an insane delusion has been various- ly formulated in Anglo-American case law. In Barr v. Summer,''^ it was stated that: " 'An insane delusion exists when a person imagines that a certain state of facts exists which has no existence at all, ex- cept in the imagination of the party, and which false impression can- not be removed ... by any amount of reasoning and argument.' "^^ Insane delusions are frequently confused with strange or absurd "Thompson v. Hawks, 14 F. 902, 903 (C.C.D. Ind. 1883) (applying: Indiana law); Robbins v. Fugit, 189 Ind. 165. 167. 126 N.E. 321. 321-22 (1920); Ramseyer v. Dennis. 187 Ind. 420, 426-27, 116 N.E. 417, 418 (1917); Barr v. Sumner, 183 Ind. 402. 415-16, 107 N.E. 675, 680 (1915); Wiley v. Gordon, 181 Ind. 2.52, 265, 104 N.E. ,500, .505 (1914). ""162 Eng. Rep. 410 (Prerog. 1826). "'See A Modest Proposal, supra note 1, at 487-89 for an extended discussion of Dew V. Clark and its impact on American will contests. ''Id. "183 Ind. 402, 107 N.E. 675 (1915). "M at 418, 107 N.E. at 680 (quoting Bundy v. McKnight, 48 Ind. 502, 512 (1874)). i 1981] BREAKING WILLS 879 opinions held by people.^^ Unless delusional thought involves some natural object of one's bounty and is related to the relative merit of leaving property to that individual, it is not an "insane delusion." In- diana's insane delusion cases may be classified into three sub- groups: (1) "They're Out to Get Me" cases in which the testator believes that someone in his family is out to do him or her harm; (2) "Crank" cases, in which the testator holds eccentric, bizarre or strange religious, scientific or political views, which are improper- ly treated as insane delusions; and (3) "Unknown" cases in which the trial court gave an insane delusion instruction without revealing enough of the evidence in the case to suggest the basis for the instruction. Six of the fifteen will contests involving insane delusions were originally trial verdicts for the proponent and nine were originally decided for the contestant. On appeal, the results were exactly reversed with nine cases being finally determined in favor of the proponent and six for the contestant.^" Only one case, Barnes v. Bosstick,''^ involved a testator committed to a mental institution. In that decision, the proponent offered to prove a lost will over objec- tions that Emma A. Dudley, the testatrix, had revoked the lost will by destruction. The lost will which disinherited her r'elatives in favor of people outside of her family was executed shortly before Mrs. Dudley was committed to a state mental hospital. The evidence showed that Mrs. Dudley had her 1927 will in her possession when she was committed. The Indiana Supreme Court correctly held that if she destroyed the will while she was insane it was not revoked.^® "This is evident most clearly in the "spiritualist" cases in which the testator is alleged to have made a will after consulting the spirits of the dead through a medium. In one such case, the medium appears to have instructed the testator to leave his prop- erty to the medium. The verdict for the contestant was sustained on a motion for new trial. Thompson v. Hawks, 14 F. 902, 903-04 (C.C.D. Ind. 1883). See also Barr v. Sumner. 183 Ind. 402, 417-20, 107 N.E. 675, 680-81 (1915); Wait v. Westfall, 161 Ind. 648, 665-66, 68 N.E. 271, 277 (1903). "See Table Fifty in Appendix A to this Article held by the publisher. See also Barnes v. Bosstick, 203 Ind. 299, 179 N.E. 777 (1932) (testatrix committed to insane asylum shortly after making will); Ramseyer v. Dennis, 187 Ind. 420, 116 N.E. 417 (1917) (some symptoms of involutional psychosis); Whiteman v. Whiteman, 152 Ind. 263, 53 N.E. 225 (1899) (unspecified mental aberrations); Forbing v. Weber, 99 Ind. 588 (1885) (revocation case: testator tore up will in fit of "temporary insanity"); Kessinger V. Kessinger, 37 Ind. 341 (1871) (psychotic behavior, allegedly caused by "dropsy"); Rush V. Megee, 36 Ind. 69 (1871) (testator alleged to have been insane when will made); Addington v. Wilson, 5 Ind. 137 (1854) (testator believed his wife to be a witch); Cahill v. Cliver, 122 Ind. App. 75, 98 N.E.2d 388 (1951) (recluse). "203 Ind. 299, 179 N.E. 777 (1932). ''Id. at 302, 179 N.E. at 778. 880 INDIANA LAW REVIEW [Vol. 14:865 The trial court found for the contestants on obscure grounds." The cause was remanded by the supreme court for proof and probate of the copy of the 1927 will in the custody of Mrs. Dudley's lawyer.'* Although an insane delusion instruction was given in the case, the supreme court did not report the nature of Mrs. Dudley's mental problems. 1. They're Out to Get Me Cases. — In Burkhart v. Gladish''^ a testator suffered from delusions which arose from his long-standing alcoholism.*" Peter Burkhart made a will leaving his estate to four of his nine children.*' Burkhart harbored an irrational conviction that his wife had been guilty of acts of sexual intercourse with some of his sons-in-law. Burkhart's will disinherited the sons-in-law. Two years after making the will, Burkhart shot himself after first killing his wife.*^ The trial evidence showed that Mrs. Burkhart had no sex- ual relations with her sons-in-law.*^ Lay opinion witnesses swore that Burkhart was crazed by prolonged excessive drinking.*^ The trial court entered judgment on a jury verdict for the contestant and the judgment was affirmed on appeal by the Indiana Supreme Court.*^ This case is typical of the "insane delusion" cases in which contestants generally prevail. Only one other Indiana case presented a similar profile indicating that the testator had what were once called "delusions of persecution" about a natural object of bounty.*® 2. Crank Cases. — Indiana appellate courts have been unkind to testators who held unusual cultural or religious beliefs. For exam- "/d at 300, 179 N.E. at 777. 'Yd at 303, 179 N.E. at 778. "123 Ind. 337, 24 N.E. 118 (1890). "Id. at 344, 24 N.E. at 120. «7d at 339, 24 N.E. at 118. *Yd. at 344, 24 N.E. at 120. The proponent alleged it was error to permit one of the sons-in-law, Elijah Gladish, to testify that he had never had intercourse with Burkhart's wife. The trial court admitted the testimony, and the supreme court held it was not error, since the testimony was relevant to the issue of whether or not Burkhart had a rational foundation for believing his wife to be unfaithful with his son- in-law. Id. at 346, 24 N.E. at 120-21. 'Yd at 344, 24 N.E. at 120. The proponent tried to exclude under the Dead Man Act the testimony of the disinherited Burkhart children concerning acts and conduct of their dead father prior to the making of his will. Id. at 345, 24 N.E. at 120. The supreme court reaffirmed its position announced in Lamb v. Lamb, 105 Ind. 456, 5 N.E. 171 (1886) that the Dead Man Act did not make intestate successors incompetent witnesses on the issue of soundness of mind in a will contest even when they claimed adversely to the will. 123 Ind. at 346, 24 N.E. at 120. '^23 Ind. at 345, 24 N.E. at 120. ''Id. at 347, 24 N.E. at 121. 'Triedersdorf v. Lacy, 173 Ind. 429, 90 N.E. 766 (1910). The case was originally decided in favor of the contestant. On appeal, the supreme court reversed the decision on the determination that the trial court had given improper instructions. I 1981] BREAKING WILLS 881 pie, only one of four will contests involving the will of a Spiritualist was eventually decided for the proponent during the heyday of that sect.*' The Spiritualist cases usually presented two alternative grounds for avoiding the testator's will: (1) the testator had an in- sane delusion because he or she believed in consulting the dead before making a will, and (2) the medium whom the Spiritualist con- sulted exercised undue influence over the testator. The case of the overreaching medium will be discussed in the next section of this Article dealing with undue influence. The Spiritualist who believed that the dead could tell him or her how to make a post-death plan for distribution of assets caused Indiana courts a great deal of dif- ficulty earlier in this century. In Steinkuehler v. Wempner,^^ Wilhelmina Albertsmeyer, the testatrix, made a will in April, 1902 and a codicil in December, 1903, which partially disinherited some of her grandchildren.*' Mrs. Albertsmeyer, an elderly believer in spiritualism, consulted a medium before making her will. The voice of her dead husband allegedly appeared to her through the agency of the medium and stated that the grandchildren were going to cause her trouble; thus, she decided that their legacy should be a dollar each.'" The disaffected grandchildren brought an action to set aside her will on grounds of lack of capacity, undue influence (by the dead husband), fraud, and want of due execution." The court set aside Mrs. Albertsmeyer's will on a directed verdict. However, on appeal, the Indiana Supreme Court reversed the trial court holding that belief in the spirit world, in mediums, and in resort to mediums for advice from beyond were not insane delusions, and that Mrs. Albertsmeyer's will was not vitiated by her resort to a medium for guidance from beyond the grave.'^ The frequency of "insane delusion" cases seems to have declined in the past thirty to forty years. The courts in most states have failed to generate a legal test for testamentary capacity out of the rule of Dew V. Clark. In Indiana, this failure may be due to the sharp decline in the number of will contests which reach the appellate ''Addington v. Wilson, 5 Ind. 137 (1854) was eventually decided for the proponent on appeal. For cases decided against the proponent see Barr v. Sumner, 183 Ind. 402, 107 N.E. 675 (1915); McReynolds v. Smith, 172 Ind. 336, 86 N.E. 1009 (1909); Steinkuehler v. Wempner, 169 Ind. 154, 81 N.E. 482 (1907). See also Thompson v. Hawks, 14 F. 902 (C.C.D. Ind. 1883) (trial decision only). '^69 Ind. 154, 81 N.E. 482 (1907). "M at 164. 81 N.E. at 486. '"Id. ''Id. at 155, 81 N.E. at 483. ''Id. at 164, 81 N.E. at 486. But see McReynolds v. Smith, 172 Ind. 336, 86 N.E. 1009 (1909). 882 INDIANA LAW REVIEW [Vol. 14:865 level.^^ The "insane delusion" is an antiquated attempt to frame a rule which invalidates a will if the will is the product of mental disease. If the courts are willing to dust off this concept and apply what is currently known about mental illness, the courts could fashion an appropriate rule for setting aside wills for lack of mental competency of the testator.^'* III. Undue Influence and Fraud in Indiana Will Contests A. English Development of the Law of Undue Influence The Statute of Wills contained no provision for avoiding wills on the ground of interference with the testator's free agency. Separate writs were available for an action of deceit in which it was alleged that some individual obtained another's property by fraudulent representations. Ecclesiastical law contained no specific canons deal- ing with wills obtained by overreaching. Bacon's Abridgments'^ men- tioned that a will could be avoided if the testator's free will was overborne by another party. Judicial development of a ground for avoiding wills due to conduct of a beneficiary was slow. The first major case which treated undue influence as a separate ground for setting aside a will was Mountain v. Bennet.^^ In Mountain, the issue centered upon the validity of the will of the late Wilfred Bennet who left large real estate holdings to his wife. Bennet was described as "a debauched man" and as "fond of women."**^ Bennet made a secret marriage contract with a widow, Mrs. Harford. Shortly thereafter, Bennet made a will leaving his estate to his new wife.^* Bennet's ''This phenomenon is noticeable in both the Indiana Supreme Court, which has heard no will contest cases since 1949, and in the Indiana appellate courts, which heard only two will contests in 1970-79, five in 1960-69, and only nine in 1950-59. By contrast, during the decade of 1900-09 the supreme court heard twelve will contests, and in the decade 1890-99 the same court disposed of thirteen will contests. '^Although this Article deals with the capacity to make a valid will, much the same type of analysis would apply to invalidating trust deeds or agreements for want of capacity. The Indiana Trust Code spells out the standard for capacity to make trust deeds and testamentary trusts, leaving open the issue of a different standard for capacity in the case of trusts created by contract. Ind. Code § 30-4-2-10 (1976). '^7 M. Bacon, A New Abridgment of the Law 303-04 (5th ed. London 1798). "29 Eng. Rep. 1200 (Ex. 1787). "M at 1201. 'Yd. at 1200. Lord Eyre in summation to the jury, regarding Mrs. Harford/Ben- net/Parry's behavior, stated: It does not appear on the state of the evidence, that this woman originally threw herself in the way of Mr. Bennet; he was naturally a debauched man and fond of women; in that state he took a fancy to this woman .... There is actual proof of applications from him to her after the death of Mr. Harford for an interview, and he certainly was a volunteer in the business. Id. at 1201. Parry's complicity in the design was not proved by any direct evidence, 1981) BREAKING WILLS 883 heir objected to the probate of the will. The case turned on whether the widow had conspired to induce Bennet to leave her his estate through importunity and favoritism. Lord Chief Baron Eyre concluded that: [I]f a dominion was acquired by any person over a mind of sufficient sanity to general purposes, and of sufficient sound- ness and discretion to regulate his affairs in general; yet if such a dominion or influence were acquired over him as to prevent the exercise of such discretion, it would be equally inconsistent with the idea of a disposing mind .... On a general view of this case, it must turn on one or other of these grounds; namely, either on the general capacity of Mr. Bennet to act for himself ... or on the ground of a dominion or influence acquired over him by this woman, with whom he had most unfortunately connected himself.^' A generation later the Ecclesiastical Courts wrestled with an importuning beneficiary in Kinleside v. Harrison.^"" Andrews Har- rison, the testator, made a will in June, 1808, followed by eight codicils."*' The first four codicils were conceded to be valid. The last four codicils materially changed his testamentary plans to give a larger share of his estate to his vicar, the Reverend Mr. Kinleside.'"^ These later codicils were attacked by caveats alleging that Andrews Harrison lacked testamentary capacity or, alternatively, was under the influence of a conspiracy consisting of Kinleside, Mrs. Jukes, Harrison's housekeeper, and Mr. Wells, Harrison's good friend.'"^ but was solely inferred from a letter from Mrs. Harford/Bennet/Parry to Parry while she was Bennet's wife in which she told Parry that her husband was weak-minded and that she had an ascendancy over the sot. Id. at 1200. ''Id. at 1201. '""lei Eng. Rep. 1196 (Prerog. 1818). ""/d. at 1196-97. The first disputed codicil gave some books and pictures from Shawfield Lodge (the home Harrison built for his brother, John) to a Mr. Trevillian subsequent to John's life interest. The second disputed codicil revoked the appoint- ment of Benjamin Harrison as executor and appointed Mr. Kinleside as co-executor in his place. The third disputed codicil was written by Andrews Harrison in his own hand. This codicil revoked the £5,000 legacy and the forgiveness of indebtedness previously made to Paul Malin and made Mr. Kinleside the residuary legatee to Har- rison's property. The fourth and final disputed codicil was dated subsequent to the other disputed codicils. This codicil revoked all devises to Benjamin Harrison and Paul Malin, revoked the appointment of Harrison and Malin as co-executors, and turned over more personal property to Mr. Kinleside. ""Id. '"Yd. at 1197-98. It was developed by the depositions of several witnesses that Paul Malin, the companion of John Harrison, had gone bankrupt, thus making the £13,000 debt uncollectible. Benjamin Harrison, who was no relation to either John or Andrews, but who was a close friend and business associate, apparently knew Malin L 884 INDIANA LAW REVIEW [Vol. 14:865 Andrews Harrison was subject to fits of temporary imbecility occasioned by an unknown disease.'"^ These attacks left him senseless for some period of time'°^ and his solicitor, Mr. Boodle, refused to let Harrison execute a codicil to his will when he believed Harrison to be imbecilic as a result of one of his attacks.'"'^ Andrews Harrison apparently discussed his codicils with Wells and Kinleside several times before they were actually executed.'"^ The last two codicils were procured by Kinleside who took down Harrison's in- structions and obtained a solicitor to draft the new codicils. These codicils were subsequently recopied by Harrison with assistance from Mrs. Jukes and were executed before the prescribed number of witnesses.'"^ After reviewing the depositions of the witnesses, Sir John Nicholl declared the four disputed codicils to be free from taint.'"' The court stated that Kinleside would likely have been guilty of ob- taining the position of executor by undue influence if Kinleside had procured Harrison's signature on the codicil."" The case contained few legal propositions about undue influence. However, the discussion of the evidence relating to the third and fourth disputed codicils took into account the friendship between Andrews Harrison and the Rev. Kinleside and their conversations in had gone bankrupt and failed either to warn the Harrisons or to protect their interest against Malin's insolvency. This all occurred early in 1813 and the result was that An- drews Harrison later cut Benjamin Harrison out of his will by his third and fourth con- tested codicils. Id. at 1227. '""Id. at 1204 (deposition of Curtis, John Harrison's coachman); id. at 1207 (deposi- tion of Matthew Harrison, Benjamin Harrison's brother); id. at 1208-09 (deposition of Mr. Stanley, a friend of Andrews Harrison); id. at 1210 (deposition of Alexander, Mrs. Jukes' maid); id. at 1211 (deposition of William Taylor, Mrs. Jukes' footman); id. at 1215 (deposition of Mrs. Jukes, the person with whom Andrews Harrison resided from 1808 to his death); id. at 1215-16 (deposition of Mr. Roberts, Andrews Harrison's medical attendant); id. at 1217-18 (deposition of Mr. Wells). '"^Mr. Roberts, a physician who visited with Andrews Harrison repeatedly during 1813-1814 when the disputed codicils were made, described these attacks. Id. at 1215-16. ""Id. at 1212-14. ""M at 1229-30. Mrs. Jukes apparently prevailed on Andrews Harrison to cut Malin and Benjamin Harrison out of his will but Taylor could not recall anything Mr. Wells may have said on the subject of altering the will, although Wells was a very fre- quent visitor to Harrison during 1813 and 1814. '""M at 1230-31. Taylor recounted a conversation between Mr. Harrison, who was quite deaf, and Mr. Kinleside, who was also hard of hearing, in which Kinleside told the gentleman to make a codicil rather than a whole new will. Id. at 1230. '""M at 1229-31. Wells' testimony showed that Kinleside procured the codicil which made him the residuary legatee of Andrews Harrison. The order to have the old man recopy the codicil in his own hand was an attempt to conceal procurement of the will. ""Id. at 1232. J 1981] BREAKING WILLS 885 a closed room relating to the alterations of the will in favor of the vicar.'" Sir John Nicholl also strictly scrutinized the preparation and execution of the codicils which benefitted the vicar. "^ A few years later, Lord Langdale crystalized the law of undue influence in Casborne v. Barsham.^^^ Casborne involved an equity suit to set aside a deed on the grounds of fraud and undue influence. "'' The advisory jury found that the deed was not procured by fraud but was the result of Barsham's importuning his client for a preference to pay off Chandler's fee bill."-' The Chancellor set aside the deed on this ground and Barsham appealed to Lord Langdale for a new trial."® Lord Langdale granted the motion and stated: [I]t is plain that there are transactions in which there is so great an inequality between the transacting parties — so much of habitual exercise of power on the one side, and habitual submission on the other, that without any proof of the exercise of power beyond that which may be inferred from the nature of the transaction itself, this Court will im- pute an exercise of undue influence. Such cases have not un- frequently occurred in transactions between parent and child, and sometimes in transactions between persons, stand- ing to each other in the relation of solicitor and client."^ Casborne laid the foundation of 150 years of judicial gloss placed on a "confidential relationship" and the impact a finding of a "confiden- tial relationship" has on a claim of undue influence. The early cases quickly found their way into English treatises on wills and evidence and crossed the Atlantic to become part of American jurisprudence."* B. Early American Undue Influence Cases New York, Pennsylvania, and South Carolina allowed wills to be set aside early in the nineteenth century because of undue influence by a beneficiary. These early cases followed the doctrinal statements set out in Williams v. GoudeJ^^ '"Id. at 1230-31. "'Id. at 1232. '"48 Eng. Rep. 1108 (Ch. 1839). "«7d '"Id. at 1109. '"See, e.g., 1 T. Jarman, A Treatise on Wills § 36, at 48 (3d ed. 1880) (1st ed. 1834). '"162 Eng. Rep. 682 (Prerog. 1828). 886 INDIANA LAW REVIEW [Vol. 14:865 The influence to vitiate an act must amount to force and coercion destroying free agency — it must not be the in- fluence of affection and attachment — it must not be the mere desire of gratifying the wishes of another; for that would be a very strong ground in support of a testamentary act: fur- ther, there must be proof that the act was obtained by this coercion — by importunity which could not be resisted: that it was done merely for the sake of peace so that the motive was tantamount to force and fear.'^° Indiana's undue influence jurisprudence derived from a notorious series of South Carolina cases involving the estate of William B. Farr. Will contests directed against Farr's last wills went to the South Carolina Supreme Court three times. '^' William B. Farr was a South Carolina planter who took up with a slave woman called Fan. Farr and Fan had a son, Henry Farr, whom Farr acknowledged as his issue. William Farr attempted to emancipate his son by a special act of the South Carolina legislature but could not obtain passage of his private act. When Henry Farr became 21, his father sent him to In- diana and settled an income upon him.'^^ In 1828, Farr made his first will which left his estate to his mistress and to their son.^^^ His sec- ond will, executed in August 1836, and a codicil of 1837 were set aside after two trials.'^" The second verdict for the contestant was sustained by the South Carolina Supreme Court on evidence show- ing that in 1836 and 1837 Farr was an habitual drunkard and im- becile.'^'' The third trial resulted from caveats against the 1828 will. Again, the jury delivered a verdict for the contestant and the case was appealed. '^^ The 1828 will was a devise of Farr's entire estate to J.B. O'Neall, his executor. The will was executed June 16th and on June 19th Farr wrote a letter to O'Neall which said: I want Fan and Henry to be free; I want Fan to have one half of my estate, and Henry the other half. When Fan dies, ''"Id. at 684. '''See Farr v. Thompson, 25 S.C.L. (Chev.) 37 (1839); Thompson v. Farr, 28 S.C.L. (1 Speers) 93 (1842) for the first two times this case appeared in South Carolina ap- pellate reports. The first two reports contained many striking details of the relation- ship between Farr, his mistress, and their son which are not reported in O'Neall v. Farr, 30 S.C.L. (1 Rich.) 80 (1844). This case was the basis for Indiana's first major will contest, Kenworthy v. Williams, 5 Ind. 375 (1854), overruled in part, Blough v. Parry, 144 Ind. 463, 43 N.E. 560 (1896). '^^25 S.C.L. (Chev.) at 38. '"M at 40. '"Id. at 49. '"Thompson v. Farr, 28 S.C.L. (1 Speers) 93, 101-03 (1842). '"O'Neall V. Farr. 30 S.C.L. (1 Rich.) 80 (1844). 1981] BREAKING WILLS 887 I want Henry to have half of Fan's half, and you the other half for your care and trouble of them; and should Henry die, leaving no wife nor child, I want you to have the whole of my estate forever. I want you to give Henry a good educa- tion, and do the best you can with him, and deal out his share to him as you think best, or as you think he will im- prove it. I want you to take Fan home with you, and build her a comfortable little house somewhere on your plantation, and let Fender and Cesley live with her as long as she lives. ^^' The evidence showed that in 1828 William Farr, although addicted to liquor, was a strong, healthy man in his mid-fifties with an in- dependent mind.'^* Later, Farr indulged in drinking bouts with Fan which left them intoxicated and in mutual blind rage. In 1832, Farr suffered a stroke which left him partially paralyzed. Fan subse- quently insulated Farr from the house servants and controlled Farr's business. There was testimony from Mr. Dawkins, an at- testing witness to the invalid 1836 will, about the drinking bouts, fist fights, and threats with deadly weapons. Dawkins also testified that Fan importuned Farr to set her free at Farr's death. '^' The supreme court reversed a jury verdict for the contestant as contrary to the weight of the evidence and ordered another new trial. '^° The court acknowledged that because of their sexual in- timacy and their child. Fan had influence over her master inconsis- tent with the relationship of master and slave.'" The court also acknowledged that Fan's influence over Farr's business and personal affairs increased from 1832 to 1836 to the point that Fan eventually acquired control over Farr's affairs. ^^^ However, the court found that the evidence did not sustain a finding that Fan had exercised undue influence over Farr in 1828. In reviewing the evidence at trial, the court said: As to what shall constitute undue influence, I can add but little to what is said in the case of Farr vs. Thomson, [sic] Ex'or. Cheves, 37. According to the authorities, it must be so great as, in some degree, to destroy free agency; an in- fluence exercised over the testator to such an extent as to constrain him, from weakness or other cause, to do what is •"M at 81. ''"Id. at 82-83. '^'25 S.C.L. (Chev.) at 40-41. '^"30 S.C.L. (1 Rich.) at 90. ''Ud. at 83. '''Id. INDIANA LAW REVIEW [Vol. 14:865 against his will, but what he is unable to refuse. This in- fluence may be obtained either by flattery, by excessive im- portunity, or by threats, or in any other way by which one person acquires a dominion over the will of another. '^^ The elements delineated in the quotation from Farr formed the basis for the Indiana Supreme Court's decision in Kenworthy v. Williams''' in 1854. C. Undue Influence in Indiana The law of undue influence in Indiana has not been as effectively articulated as has the law of testamentary capacity. The best way to examine the structure of a claim for relief based upon undue in- fluence is to isolate the elements which the Indiana courts have re- quired before setting aside a will as the product of undue influence. In Kenworthy , the Indiana Supreme Court reviewed an appeal from the Henry Circuit Court. The trial judge sustained a demurrer to a five count petition to set aside the will of Stephen Gregg. Two of five counts alleged that Gregg's will had been procured through the "undue influence and improper conduct" of the defendants. The In- diana Supreme Court, citing O'Neall v. Farr,"^ stated that the par- ticular facts on which undue influence might rest at trial need not be specifically pleaded by the contestant. The supreme court dif- ferentiated between ordinary fraud and undue influence. An action for fraudulent procurement of property required specific averments of the acts and words which constituted fraudulent inducements by the defendant. '^'^ However, a will contest based upon alleged undue influence by a beneficiary did not require the specific pleading of evidentiary facts amounting to fraud. 1. Susceptibility to Influence. — 'Nearly all Indiana cases dealing with undue influence concern a testator who was in poor health,'^' '''Id. at 84. "'5 Ind. 375 (1854), overruled in part, Blough v. Parry, 144 Ind. 463. 43 N.E. 560 (1896). '^^30 S.C.L. (1 Rich.) 80 (1844). "*See, e.g.. Baker v. McGinniss, 22 Ind. 257 (1864) in which the supreme court overruled a demurrer to a complaint to set aside a sale of hogs. The plaintiffs aver- ment stated that the defendant sold plaintiff 27 hogs, representing them to be sound and healthy. The hogs in fact had cholera, which the defendant knew, and the plaintiff bought in reliance on defendant's statement to the contrary. The court held that this was a good plea of specific facts to support a claim for relief from fraud in the sale. See also Peter v. Wright, 6 Ind. 183 (1855) (bill to cancel deed and title bond, demurrer overruled, facts specific enough to set out cause for equitable relief on grounds of fraud). '"The "bad health" cases include occasional discussions by the court of the impor- tunities of relatives and professionals, as in Deery v. Hall, 96 Ind. App. 683, 694-95, 175 I 1981] BREAKING WILLS 889 under the influence of some sedative or alcohol, afflicted with what is commonly labeled by lay people as "senility,"'^* or suffering from some other mental or physical impairment. In Folsom v. Buttolph,^^^ the Indiana appellate court quoted extensively from In re Douglass' Estate^^° in attempting to cope with the relationship between physical or mental impairment and undue influence, stating: " 'Un- due influence exists when, through weakness, ignorance, dependence or implicit reliance of one on the good faith of another, the latter ob- tains an ascendency which prevents the former from exercising an unbiased judgment . . . .' "'^' Many Indiana cases state that since the testator was a person of strong mind and stubborn character the issue of undue influence was either not present in the case and should have been taken from the jury,'"^ or that the contestant failed to establish a prima facie case of undue influence/" In either situation, the courts consistently implied that unaue influence cannot be proven unless the contestant shows that the testator was susceptible to influence by a potential beneficiary in the first place. '^^ 2. Existence of Confidential Relationship Between Testator and Influencer. — Nea.rly all Indiana undue influence cases allege that the testator and the alleged undue influencer had a special relation- ship in which the testator placed trust in the influencer.^^^ The rela- N.E. 141, 145 (1931) in which the appellate court scrutinized the conduct of the testator's priest and medical personnel at St. Vincent's hospital in Indianapolis, noting that the priest and the hospital were substantial beneficiaries under the testator's deathbed will. '^'The number of cases in Indiana in which an elderly person was alleged to have been influenced by some relative or professional because of his or her senility is quite large. In Love v. Harris, 127 Ind. App. 505, 513, 143 N.E.2d 450, 455 (1957) the court in- dicated that undue influence is conducted in private and is rarely accompanied by the use of force. "'82 Ind. App. 283, 143 N.E. 258 (1924). ""162 Pa. 567, 29 A. 715 (l894). '"Id. at 568. 29 A. at 716. "'See, e.g., Stevens v. Leonard, 154 Ind. 67, 70-75, 56 N.E. 27, 28-30 (1900). '"The decisions which hold that the contestant had not established a sufficient case to go to the jury on undue influence usually give a precise account of the evidence on the issue and point out that inferences of affection, respect, even importuning by family members, as well as solicitous conduct toward a testator by potential beneficiaries do not provide sufficient circumstantial evidence to go to the jury on un- due influence. See, e.g.. Crane v. Hensler, 196 Ind. 341, 354-55, 146 N.E. 577, 581 (1925). ""The best American case on the substantive law of undue influence. In re Faulks' Will, 246 Wis. 319, 17 N.W.2d 423 (1945), adopts this element as one of the primary components of a claim or cause of action to set aside a will on grounds of undue in- fluence. Id. at 335, 17 N.W.2d at 440. '"In this respect, Indiana also follows the guidelines established in In re Faulks' Will. The Wisconsin Supreme Court characterized this element as the "[ojpportunity to exercise such influence and effect the wrongful purpose." Id. at 335, 17 N.W.2d at 440. 890 INDIANA LAW REVIEW [Vol. 14:865 tionships which courts have found capable of perversion into undue influence include attorney and client,'*® medical professional and patient,'"^ agent and principal,'^*' and parent and child.'" The common element in each of these relationships is that the testator, induced by the closeness of the relationship, reposed confidence and trust in the alleged influencer. Indiana courts deem this situation a "con- fidential relationship" and allow proof of a confidential relationship between the testator and a beneficiary to be admitted as cir- cumstantial proof of undue influence by the beneficiary.'^" 3. Use of a Confidential Relationship to Secure a Change in the Testator's Disposition of Assets at Death. — A will is the product of undue influence only if the testator gives some influencer more than the influencer would have taken by prior wills, deeds, or by in- testate succession. There are only one or two Indiana cases in which the supreme court ordered the issue of undue influence withdrawn from the jury when the trial transcript showed evidence of a con- fidential relationship between the testator and the alleged in- fluencer. In each case, the court correctly pointed out that any im- '"See. e.g., Breadheft v. Cleveland, 184 Ind. 130. 108 N.E. 5 (1915); Kozacik v. Faas, 143 Ind. App. 557. 241 N.E.2d 879 (1968); Workman v. Workman, 113 Ind. App. 245, 46 N.E.2d 718 (1943) (a cross-type in which the second spouse connived with a lawyer to obtain benefits from the testator). See also Arnold v. Parry, 173 Ind. App. 300, 363 N.E.2d 1055 (1977) (contestant alleged that lawyer cooperated with Salvation Army to gain testator's favor for the Salvation Army). '"There was an allegation in Deery v. Hall, 96 Ind. App. 683, 175 N.E. 141 (1931), that hospital personnel at St. Vincent's Hospital in Indianapolis may have influenced Dolan's testamentary scheme in favor of several Catholic charities. Indiana has no case of the caliber of In re Faulks' Will or of Gerrish v. Chambers, 135 Me. 70, 189 A. 187 (1937) in which a nurse used her control over an elderly patient to extract lifetime gifts from the patient in return for overly solicitous behavior. ""See, e.g., Bank of America v. Saville, 416 F.2d 265 (7th Cir. 1969), cert, denied, 396 U.S. 1038 (1970). '"See, e.g., McCartney v. Rex, 127 Ind. App. 702, 145 N.E.2d 400 (1957); Hoopen- gardner v. Hoopengardner, 102 Ind. App. 172, 198 N.E. 795 (1935). '^°The best doctrinal summary of the "confidential relationship" theory in Indiana case law appears in Keys v. McDowell, 54 Ind. App. 263, 100 N.E. 385 (1913): There are certain legal and domestic relations in which the law raises a presumption of trust and confidence on one side, and a corresponding in- fluence on the other. The relation of attorney and client, guardian and ward, principal and agent, pastor and parishioner, husband and wife, parent and child, belong to this class and there may be others. Where such a relation exists between two persons, and the one occupying the superior position has dealt with the other in such a way as to obtain a benefit or advantage, the presumption of undue influence arises .... Upon the issue of undue influ- ence, such a presumption arising in favor of the party having the burden of proof makes a prima facie case; and, if no evidence is introduced tending to rebut such presumption, he is entitled to a verdict or finding in his favor upon that issue .... M at 54 Ind. App. 269, 100 N.E. 387. 1981] BREAKING WILLS 891 portuning by the alleged influencer did not change earlier disposi- tions made by the testator and did not, therefore, constitute undue influence.'" •4. The Testator Changed His or Her Disposition. — To have a will set aside as the product of undue influence, Indiana case law re- quires a testator to make a change of testamentary disposition. In- diana law regards several kinds of events as a change of testamen- tary disposition. Indiana cases hold that making a new will in favor of the influencer is a change of disposition.'^^ The cases also hold that a testator's revocation of a will in order that he may die in- testate is a change of disposition."'^ Finally, an inter vivos transfer of property to an influencer in excess of what the influencer could expect at death is also held to be a change of disposition.'^^ 5. The Change of Disposition Was Unconscionable. — Vncons- cionability is difficult to define, but easy to illustrate. In Crane v. Hensler,^^^ contestants alleged that the testator's second wife impor- tuned the testator to make a will favoring her and her own children by a prior marriage over the testator's children by his first wife."'® The Indiana Supreme Court set aside a jury verdict for the con- testants and ordered a new trial due to an erroneous instruction to the jury about undue influence.'" In Brelsford v. Aldridge,^^^ the testator disinherited his only child in favor of his mistress*. After ex- ecuting his will, and just prior to his death, the testator married his '''See, e.g., Irwin Union Bank & Trust Co. v. Springer, 137 Ind. App. 293, 205 N.E.2d 562 (1965). This portion of the elements which constitutes undue influence received special attention in Shaffer, Undue Influence, Confidential Relationship, and the Psychology of Transference , 45 Notre Dame Law. 197 (1970). ''^Nearly all contests claim the testator made a subsequent will which favored the influencer. See, e.g., Jones v. Beasley, 191 Ind. 209, 131 N.E. 225 (1921); Davis v. Babb, 190 Ind. 173, 125 N.E. 403 (1921); Bobbins v. Fugit, 189 Ind. 165, 126 N.E. 321 (1920). "'See generally Barnes v. Bosstick, 203 Ind. 299, 179 N.E. 777 (1932). Although there are no Indiana will contest cases in which the contestant alleged a prior will was revoked under undue influence, thus permitting the testator to die intestate, Indiana courts would likely adopt the holding of In re Marsden's Estate, 217 Minn. 1, 13 N.W.2d 765 (1944), which concluded that the revocation of a testatrix' will procured from her on her death bed by the surviving children, cancelling a devise to her grand- daughter and housekeeper, and causing the estate to be divided equally among the five living children of the testatrix, was void as the product of undue influence. '"The Indiana cases setting aside deeds of real estate and gifts of personal pro- perty in anticipation of death as the result of undue influence include Westphal v. Heckman, 185 Ind. 88, 113 N.E. 299 (1916); Wray v. Wray, 32 Ind. 126 (1896); Gwinn v. Hobbs, 72 Ind. App. 439, 118 N.E. 155 (1917); Beavers v. Bess, 58 Ind. App. 287, 108 N.E. 266 (1915); McCord v. Bright, 44 Ind. App. 275, 87 N.E. 6.54 (1909). '496 Ind. 341, 146 N.E. 577 (1925). '"Id. at 353-55, 146 N.E. at 580-81. '"M at 352-53, 146 N.E. at 580-81. "*42 Ind. App. 106, 84 N.E. 1090 (1908). 892 INDIANA LAW REVIEW [Vol. 14:865 mistress. The appellate court reversed a judgment for the defendant on the ground that the trial court erred in refusing to let the testator's daughter testify that she enjoyed good relations with the testator. '"^^ The distinction between the two cases lies in the social acceptability of the actions of the woman in each case. In Crane, the second wife was within her perquisites as a wife in placing pressure on her husband to favor her with a new will. On the other hand, Brelsford showed that a mistress may not importune her lover for a legacy since she had no preferential status at law. Therefore, a will leaving an entire estate to a mistress is unconscionable while a will leaving all to a second wife is not. In summary, Indiana law recognizes undue influence as a claim for relief against a will, deed, contract, or trust instrument which arises when a person who is susceptible to influence by others as a result of mental or physical infirmity establishes a confidential rela- tionship with another person. If that person uses the confidential relationship to manipulate the testator, grantor, or settlor in order to force that individual to change his testamentary plans or lifetime gift plans to favor the influencer, and if the results of that change are socially unacceptable or unconscionable, then the person exercis- ing such importunities will be held to be an undue influencer. A claim for relief may be heard against any benefits secured by the in- fluencer or any confederates as a proximate result of the undue in- fluence. D. A Rogue's Gallery of Undue Influencers In many instances, whether the court decides in favor of the con- testant or proponent depends in large measure upon the type of per- son exerting the influence. The status of the individual exerting the influence determines the outcome of a will contest more consistently than propositional legal statements about burdens of proof and presumptions. Since Indiana case law provides a colorful gallery of rascals and rogues engaged in undue influence, a review of the five types of undue influencers will be profitable. 1. David and Bathsheba Cases.'""— Many undue influencers play the role of Bathsheba, the second wife of King David of Israel, and importune their spouse for preferment against the children of a former marriage. There are thirteen such cases in Indiana jurisprudence which are exemplified by Workman v. Workman.^^^ "'Id. at 109, 84 N.E. at 1091. '""Bathsheba's importuning to David for favoritism for her son against Adonijah is recounted in 2 Samuel 12:24 and 1 Kings 1:11-38. A "David and Bathseba" will contest is a will contest on the ground of undue influence exercised by a second spouse to secure favor over children of the testator by a prior marriage. ""113 Ind. App. 245, 46 N.E.2d 718 (1943). 1981] BREAKING WILLS 893 John T. Workman had three children by his first wife who died March 30, 1932. John Workman's life style changed dramatically after his first wife's funeral. He frequented local saloons in the com- pany of a young lawyer named Herbert Lane and consumed enor- mous quantities of liquor each day. The case report does not disclose whether Lane introduced Workman to a divorcee named Ida Sutton. However, Workman married Ida Sutton within two years after his first wife's death. "^^' Lane took Workman on weekend trips and, in 1937, Lane took Workman for an eastern summer vacation.'"^ When they returned from the trip east. Workman had Lane draw up a deed conveying all his real estate to Ida Workman. "*" On March 25, 1938, Herbert Lane and Ida Workman took John Workman to a hospital in Louisville, Kentucky for treatment of rec- tal cancer. Workman was placed under heavy sedation."'^ John's only living child, Ott Workman, was neither notified that his father was ill, nor where his father had been taken until sometime later when his father lay dying."''' In late March, Lane drew up a will for Workman giving the remainder of Workman's property to Ida and to her son by a prior marriage, Norval Sutton.'" Lane never read the will to Workman in the presence of the attesting witnesses and it was unclear whether John Workman knew what he was doing when he signed the will. Some days later, when Ott finally located his father and came to Louisville to see him, John Workman asked Ott to get a lawyer to make a will leaving all his property to Ott."'^ On this evidence, the Orange Circuit Court entered judgment on a jury verdict for the contestant. "'^ The Indiana Appellate Court, fin- ding no reversible error, affirmed the verdict on appeal."" The pat- tern of overreaching and importuning by Herbert Lane and Ida Workman to secure John Workman's estate was conduct which the court was willing to call unconscionable and outrageous. It exceeded what the court felt was the appropriate degree of pressure a second spouse may bring on his or her mate to secure a testamentary ad- vantage. 2. Esau and Jacob Cases.''' — Will contests often develop be- '"Ud. at 270-71, 273-74, 46 N.E.2d at 727-29. '"/d at 271, 46 N.E.2d at 728. '"/d at 274, 46 N.E.2d at 729. ''"Id. at 271, 46 N.E.2d at 728. ""/d On the same day that Workman signed his will, he also signed stock certif- icates over to his lawyer. Lane. Lane had to guide the old man's hand in making the signatures to these instruments. Id. '''Id. at 274, 46 N.E.2d at 729. ''^Id. at 252, 46 N.E.2d at 720. "'Id. at 280, 46 N.E.2d at 731. '"The well-known story of Esau, who sold his birthright to Jacob for a pottage stew, and Jacob's deceitful obtaining of the first-born son's inheritance from his blind. 894 INDIANA LAW REVIEW [Vol. 14:865 tween children of a testator. In these inter-sibling fracases, one sib- ling often accuses the other of exerting undue influence over the deceased parent. There are twenty-six Indiana decisions which fit this pattern of alleged undue influence. In 1936 the Indiana Appellate Court reviewed Hoopengardner v. Hoopengardner,^'^^ a typical Esau and Jacob case. Lewis Hoopengard- ner owned a large farm in Wells County. His wife died in 1928, and until his son, Jasper, returned home, he had promised his children that he would divide his estate equally among them. The old man promptly became angry with his other children over trifles and changed his disposition toward them. The elder Hoopengardner went everywhere in the company of Jasper and agreed orally with Jasper that if Jasper would take care of him in his declining years he would deed the home farm to Jasper. Finally, the old man, then near 90, in addition to the inter vivos transfer of the home farm to Jasper for nominal consideration made out a will leaving the bulk of his personal estate to Jasper.'" The trial court entered judgment on a jury verdict for the contestant which was affirmed on appeal.'^" In Hoopengardner, Jasper Hoopengardner did essentially nothing for his father except befriend him. In return for his compan- ionship, Jasper received an inter vivos transfer of all his father's real estate and a favored position in his father's will. The court in Hoopengardner apparently reasoned that the gifts to Jasper were unconscionable in relation to Jasper's potential claim for services. This seems to be the line of demarcation in such cases. '^' 3. The Judge Jaffrey Pyncheon Cases. ^''^ — Nine Indiana will contests deal with a will in which the undue influencer is alleged to have been a brother, sister, niece, or nephew of the testator. Gurley v. Park^^^ represents the type of Jaffrey Pyncheon case dying father, Isaac, is recounted in Genesis 25:30-34. 27:6-38, 27:41-45, 32:1-32 and 33:1-20. An "Esau and Jacob" contest is a will contest in which the contestant alleges that his or her sibling or half-sibling importuned their parent for a greater share of the parent's estate. "402 Ind. App. 172, 198 N.E. 795 (1935). "'M at 173, 198 N.E. at 795. "'Id. at 174, 198 N.E. at 796. ""But cf. McCartney v. Rex, 127 Ind. App. 702, 145 N.E.2d 400 (1957) (decision for the proponent on similar facts when the influencer actually took physical care of the testator for some time). ""The "Jaffrey Pyncheon" cases resemble the actions of Judge Jaffrey Pyncheon, the villain of Nathaniel Hawthorn's House of the Seven Gables. In a Judge Pyncheon will contest, the influencer is a collateral relative of the testator, who importunes and intrigues his collateral, as Judge Pyncheon did, to gain testamentary favors. Judge Pyncheon disguised his uncle's death to give the appearance of a murder, and then Jaf- frey "framed" Clifford Pyncheon in order to gain the inheritance. '"135 Ind. 440, 35 N.E. 279 (1893). 1981] BREAKING WILLS 895 in which the influencer generally loses. '^* Mary B. Park, the testatrix, was very old, infirm, and deranged. On her death bed, she executed a will disinheriting her son after being importuned by her brother to leave her property to the brother's two children in preference to her own son who was in financial need.'™ Mrs. Park was something of a recluse and made statements to other persons in the years immediately before her death that she would leave them her property. The jury verdict and judgment casting out her will was sustained by the Indiana Supreme Court as supported by the evidence at trial.'*" In this case, the importuning brother obtained a will in favor of his own children at the expense of a lineal descen- dant. The case abounded with evidence of Mrs. Park's susceptibility to influence and of the conscious connivance of her brother to secure an estate for his own children. -4. The Uriah Heep Cases.'*' — In recent years, importuning family members have been replaced in undue influence cases by im- portuning professional persons. Six of the nine Uriah Heep will con- tests in Indiana are twentieth century cases. Four of the nine cases have been decided since World War II. The common element in all of these cases is that the person alleged to have exerted undue in- fluence over the testator was the testator's lawyer, physician, or agent rather than a family member. Kozacik v. Faas^^^ illustrates the kind of Uriah Heep will contest in which the contestant may prevail. Katherine Yaeger executed her will August 30, 1963. The principal beneficiary under her will was Andrew M. Kozacik, a lawyer.'*^ Mrs. Yaeger's estate amounted to slightly less than $6,000. Her son, Anthony Faas, filed a will contest alleging that his mother's will had been procured by Mr. Kozacik's undue influence. At trial, Mr. Kozacik stated he received no compen- sation for drawing Mrs. Yaeger's will or for the other services he performed for the testatrix for the seven years prior to her death. "'But see Stevens v. Leonard, 154 Ind. 67. 56 N.E. 27 (1900) for a decision for the proponent in wiiich the influencer denied i