Question
Review the following facts and prepare a memorandum on what potential causes of action may be available to invalidate this will. In August 2007, Lisa
Review the following facts and prepare a memorandum on what potential causes of action may be available to invalidate this will.
In August 2007, Lisa became the decedent Richard's fourth wife. Richard was almost 82. His mental health began to deteriorate as early as 2005 and he suffered from "numerous and serious physical infirmities beginning in 2005 and continuing until his death" in 2012. In addition to physical problems, Richard had cognitive difficulties. From 2006 onward, he suffered from progressive dementia, which worsened over time. He frequently engaged in inappropriate behaviors and expressed paranoid beliefs.In 2007, he began to regularly play mail-away scam lotteries in foreign countries and was convinced that he was winning significant sums, without ever receiving a dime. In June 2011, a circuit court determined that Richard was totally incapacitated and appointed his daughter, Patty, as his plenary guardian.
On April 2, 2008, a new will was executed by Richard. Two lawyers were involved, a referring lawyer and the drafting lawyer. The referring lawyer, who had minimal experience in estate planning, was a social friend of Richard and Lisa. In 2007, Lisa "loaned" the referring lawyer money, which was never repaid. The referring lawyer sent Richard and Lisa to the drafting lawyer, his former law partner, to obtain a new will for each of them. The referring lawyer testified that he did not discuss the contents of the new will with Richard or Lisa, nor did he give his former partner instructions for its preparation; he said he gave the couple no legal advice whatsoever.
The testimony of the drafting lawyer sharply conflicted with that of the referring lawyer. The drafting lawyer had no personal interaction with the couple prior to their appearance at his office on April 2, 2008 to sign their new wills. His law firm provided no legal advice to the couple prior to the wills' preparation. He had no knowledge of the decedent's prior wills or his estate plan. He testified that it was the referring lawyer who gave him instructions for the preparation of the decedent's will and the revocation of a power of attorney.
The 2008 will completely transformed Richard's prior estate plan. In a 2006 will executed eight months after he met Lisa, Richard devised the entire estate outright to his daughter, Patty, with his granddaughter as the alternate beneficiary. This will was consistent with an earlier will which provided for Richard's family. Prior to meeting Lisa, Richard financially assisted his children. However, the 2008 will devised the entire estate to Lisa, with an existing charity created by Richard as the alternate beneficiary. Four months after the execution of the 2008 will, the charity was dissolved and all of its assets were distributed to a New Hampshire beneficiary.
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