Joaquin Page was $80$ years old when he was released from the hospital with a life expectancy of only a few months. After he returned home, his daughter Kara Montoya, and his niece Bridget Wilkes, took care of him. Montoya and Wilkes both had good relationships with Page but did not have a good relationship with each other. Montoya lived approximately two hours away and so helped when she could make it to town. Page repeatedly asked Montoya to move in with him, even before he was sick, and often told Montoya that she should move in because the house would be hers someday. Page also told his other children and several friends that the home was going to belong to Montoya but that he did not want her to sell the home. Due to work and other commitments Montoya could not move to the family home.

Wilkes, who had lived next door to Page$$s significant property for the past twenty years, became friends with her uncle in the last two years of his life and then helped quite often when he became ill. Wilkes and her husband offered to buy the property from Page who refused to sell to them and shared with several friends that he was going to leave the property to Montoya and was angry that the Wilkes wanted to buy it$.$ Page asked Wilkes to purchase a commercial will$-$drafting kit. Using it$,$ he drafted a will on July $15,$ signed it$,$ and had Wilkes$$s daughter and son$-$in$-$law sign as witnesses. Several witnesses would testify that Page remained stubborn and mentally alert until the day he died $-$ one week later on July $22.$

Page$$s July $15$ will appointed Wilkes as executor and gave his entire estate to Wilkes. Wilkes was not in the room when the will was signed by Page or the witnesses. The will contained no other dispositions or gifts and did not leave anything to Montoya. According to Wilkes, the day before he died, he showed her the will and said that he had given Montoya every opportunity to come and live with him, but she had made no attempt to do so$.$ Because of her failure to move in with him, Page stated that he wanted his property to stay in the family, and he also wanted his older sisters to be able to come and live there and for Wilkes to help carePage$$s will was

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$,$ it was

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$,$ and it was attested to by

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witnesses. In addition, there

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evidence of a lack of capacity or intent.

Assessment question

Montoya and Wilkes both were

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of Page in his final days. Caretakers

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in a position of influence. When a will names a beneficiary who is in a position of influence, a court may find the will

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$.$ Typically undue influence is found when a will leaves out a

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to name a

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in a position of influence as beneficiary.

Assessment question

In this case both Montoya and Wilkes were

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$.$

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would be considered a closer blood relative and so this will gives the estate to a relative more distant. In this case, there is a significant risk that a court

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find that Page was subject to undue influence.

Assessment question

What If the Facts Were Different?

Assume that instead of using a will kit and having Wilkes$$s daughter and son$-$in$-$law sign as witnesses, Page had hired a lawyer to draft his will. When the lawyer arrived, the lawyer interviewed Page alone and after determining that Page was competent, drafted the will leaving everything to Wilkes. When the lawyer realized that Page$$s niece was to receive the estate, the lawyer again interviewed Page to determine if Page was intentionally disinheriting his children in favor of his niece. The lawyer invited two members of his firm to come to the house and, after telling them that the document was Page$$s will, had them sign as witnesses.

In these circumstances, the beneficiary under the will

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involved in the process of drafting or signing the will. The lawyer

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interview Page to ensure that Page was competent. The lawyer

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interview Page to ensure that the will reflected Page$$s true intentions.

Assessment question

The interviews by the lawyer would

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the likelihood that Page was subject to undue influence by Wilkes. Under the circumstances, it

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likely that a court would find that Wilkes attempted to unduly influence Page. for them as well.