Law Offices of Robert H. Glorch
Client Login
847-991-2250 Call For a Consultation
Plan for the Road Ahead
Road by the ocean. Road in the desert. Road by mountains. Snowy road. Road by grassland. Road leading to a bridge.

Ernie Banks Estate, Part 8: Testamentary Capacity and Undue Influence

Ernie Banks Eddie Vedder

This is the eighth in my series on various legal aspects of the Estate of Ernie Banks. You can read my first seven installments here.

Blogging has been a bit light lately with fall madness — and the Cubs playoff chase — upon us, but I wanted to update readers on the latest developments. In this installment, I’m going to focus on the grounds being used to contest Banks’ will and trust: (1) lack of testamentary capacity; and (2) undue influence.

The Latest Developments

Before I get into the heavy stuff, here are a few newsworthy items since my last installment on September 1:

  1. Elizabeth Banks and Regina Rice strikeout in settlement talks. I noted in my last post that the parties had scheduled a pre-trial settlement conference with the probate judge in an attempt to perhaps avoid further litigation. On September 25, Elizabeth Banks and Regina Rice (and their various attorneys) met privately together, and with Judge Riley, to discuss potential settlement. The talks were closed-door, but the public statements following the reportedly short meeting indicate that the parties are gearing up for the long haul. Attorneys for Elizabeth Banks declined comment following the meeting. Rice’s attorneys claimed that they put forth an offer to share in proceeds of marketing Banks’ likeness, but that Elizabeth Banks “refused to negotiate at all.” Rice’s attorney further boasted that “We will have a parade of witnesses that will testify that Ernie was in terrific health and had mental capacity.” Of course this could be just posturing, but for now the case moves on. Rice, who has not yet filed an Answer to the will contest, will presumably now do so within the next month.
  2. Shirley Marx claim dismissed. In my last post I noted that Shirley Marx, a longtime friend of Ernie Banks, had filed a $80,000+ creditor claim against the estate for unpaid loans. At the claims call hearing on September 28, an Agreed Order was entered voluntarily dismissing the claim “as per agreement.” What exactly the agreement was, and whether Marx might ever be repaid for some of her loans is unknown.
  3. Article on the last years of Ernie Banks. In the October issue of the online Chicago Magazine, former Chicago sports reporter Ron Rapoport has a fascinating, though depressing, retrospective on the private side of the last years of Ernie Banks. Rapoport met with Banks over the past several years to write his biography, but the project ultimately was never completed because Elizabeth Banks didn’t want him to do the book. I don’t know that there are any legal bombshells in the article as it relates to this case, but it’s certainly possible that Rapoport could find himself as a (perhaps reluctant) witness in the estate case.

Grounds for Will and Trust Contests

In last month’s installment, I introduced some of the procedural aspects for will and trust contests — things like time limits, who can file, and the effect of a will contest. Today I want to introduce the specific grounds for filing a will and trust contest. The grounds that are being employed here by the plaintiff, Elizabeth Banks, and in most will and trust contests cases. Those grounds are: (1) lack of testamentary capacity; and (2) undue influence.

1. Lack of testamentary capacity

The first ground often used to challenge a will or trust is a claim that the testator (or in the case of a trust — the settlor) lacked sufficient mental capacity to create the instrument. The requisite capacity is known as “testamentary capacity,” which is generally defined as the mental ability to know the natural objects of one’s bounty, to comprehend the kind and character of one’s property, and to make disposition of the property according to some plan formed in one’s mind. A few points about the baseline for testamentary capacity:

  • The law presumes everyone has testamentary capacity until proven otherwise.
  • The contesting party has the burden of proof.
  • There is no single mental diagnosis or condition that establishes lack of mental capacity.
  • Capacity is tested at the time the instrument is executed.

In Banks’ case, Elizabeth alleges that he had been recently diagnosed with “moderate to severe dementia” and had “severe global cognitive impairment.” Such diagnoses, though, are not conclusive. Even those with severe dementia may have lucid moments and may have the ability to know the things necessary to form testamentary capacity. In addition to medical diagnoses, these cases often turn on witness testimony, not only from those who knew Banks and those that interacted with Banks regarding his estate plan, but also from medical experts. Capacity cases often become a “battle of the experts.”

2. Undue Influence

Influence by a third-party (typically a potential beneficiary) is “undue” when it prevents the testator from exercising his own will in the disposition of his estate such that the testator’s will is rendered more the will of another. That influence generally must also be directly connected to the creation of the will or trust.

Most, but not all, undue influence cases proceed based on the plaintiff’s attempt to established a presumption of undue influence, based on a 4-part test:

  1. Proof of a fiduciary relationship between the testator and beneficiary.
  2. The beneficiary prepared or procured the preparation of the will or trust.
  3. The decedent reposed trust and confidence in the beneficiary.
  4. The beneficiary receives a substantial benefit under the will or trust.

The first two parts are usually the biggest hurdles. A fiduciary relationship can be established as a matter of law (e.g. attorney client or principal-agent as in a property POA) or based on facts that the decedent relied on the beneficiary. Whether, and to what extent, the beneficiary participated in the creation or drafting of the trust is often a flashpoint. The more direct involvement that the beneficiary had in the procurement of the will or trust, the greater chance of invalidation.

If the presumption is established, then the burden shifts to the fiduciary-beneficiary to rebut the presumption. There is no one single test to determine when the presumption is rebutted, as each case turns on its own unique facts.

In Banks’ case, Elizabeth makes specific allegations relating to all of the elements to establish the presumption of undue influence, though since the complaint has not yet been answered, I’ll save the details for a later date.

Lack of capacity and undue influence are often alleged and argued together and alternatively. After all, a person with diminished capacity is certainly more susceptible to undue influence. A person with no diminished capacity is much less likely to become the subject of undue influence.

While the plaintiff does not have to argue the entire case in full detail in the initial complaint, she must allege actual facts relating to all necessary elements. It is not sufficient to allege only legal conclusions. What does this mean? An example:

  • Fact: Bernie Beneficiary scheduled an appointment to meet with Arnie Attorney and told Arnie what Tommy Testator wanted his will to say.
  • Conclusion: Bernie Beneficiary procured Arnie Attorney to create a will for Tommy Testator.

What’s Next?

Unless settlement talks are re-ignited, Rice will respond to the will and trust contest complaint. Most likely, this will come in the form of a written Answer filed with the court. The Answer typically responds, on a point-by-point basis, to each paragraph of the complaint.

From there, the parties will begin the discovery process. I’ll likely discuss the discovery process, and its tools, in a future post.

And Finally…

In honor of tomorrow’s Wild Card game, here is Ernie Banks and Eddie Vedder at Wrigley Field in July 2013 singing “All The Way.” Should the Cubs win tomorrow, blogging may be light for the next few weeks as I spend evenings chewing at my fingernails and shouting at my TV screen.

Go Cubs!