It is no secret that many priests, clergymen, and spiritual advisors, share a deep, committed, and trusting relationship with their followers and church congregation. The degree and extent of this trust grow with time, and recent cases I have handled in Florida led me to conclude that the elderly often share a very special relationship with their spiritual advisors and others who the elderly person views as in a position of religious authority or spiritual leadership. Because the nature of this relationship often equates with what the law defines as a confidential relationship, some legal commentators have recently suggested that the law creates a per se rule raising the presumption of undue influence when an eleventh-hour will is executed and religious leaders are active in its procurement, or involved in the will’s preparation and are named as beneficiaries. As Professor Jeffrey G. Sherman recently stated:
“The best solution to this problem of clerical overreaching is to treat all relationships between a testator and her spiritual advisor as per se confidential for purposes of the law of undue influence. Not only would such a solution recognize the enormous power of religious influence and thereby prevent undue leniency in the face of undue influence by mainstream clergymen, but it would also guard against the temptation to assess the reasonableness of any religious or spiritual beliefs. The contestant would need to produce evidence only as to the category into which the alleged influencer fell (together with evidence of a “suspicious circumstance”); the inquiry would then turn, with the proponent having the burden of production, to the fundamental–and the purely secular–issue of whether the will represented the testator’s own wishes.” 73 BROOKLYN LAW REVIEW 579 (2008).
The suspicion surrounding gifts made in eleventh-hour wills to churches and religious institutions isn’t something new. In fact, the English common law and its courts have many dusty old books of legal opinions memorializing their concern that organized religion was taking advantage of the deathbed fears of the faithful for its own profit. These concerns are also evident in the passage of mortmain statutes. For example, Florida’s mortmain statute, before it was declared unconstitutional, prohibited any gift by will to a church when it was done less than six months prior to the person’s death.
A good illustration of why it is right to view religious influence as undue influence is found in the case of Hartley v. Toth (In re Estate of Hee), 252 So. 2d 846 (Fla. 3rd DCA 1971). The facts of Estate of Hee are summarized in the court’s opinion:
“Louis Hee was an elderly resident of Dade County, Florida prior to his death on May 21, 1969. He lived alone and had no immediate next of kin resident in Dade County, Florida. For some time prior to his death, he had been in extremely ill health to the point of being confined to his bed a great deal of the time. He was primarily cared for by a friend, Stephen Bertok, who looked after his personal needs for some time prior to his death.” Id. at 846.
“[A] few months prior to the death of Mr. Hee, members of the religious sect known as Jehovah’s Witnesses called at the home of Mr. Hee to interest him in their literature and religious beliefs. Several return visits were made during which time other members of the religious sect also called upon Mr. Hee. Among these visitors were John Hartley, Jr. and William H. Payne, who are members or ministers of the Jehovah’s Witnesses. During these several weeks of visiting, Mr. Hee remained a member of the Christian Church of his faith and just before his death attended his church on Easter Sunday for Easter Sunday services. He was never a member of the religious sect known as Jehovah’s Witnesses or in any manner connected with the Watch Tower Bible and Tract Society, a Pennsylvania Corporation.” Id. at 846.
“Mr. Hartley had sought the services of A. C. Lowery, Esquire, an attorney at law of this city who was an attorney for the Watch Tower Bible and Tract Society to go to the home of Mr. Hee to have a will prepared by him and that it had to be done immediately. Upon Mr. Lowery advising him that he could not immediately take care of the matter, Mr. Hartley then proceeded to prepare a will for Mr. Hee’s signature. In company with William H. Payne and Lillie Mae Payne, who were also members of Jehovah’s Witnesses, the three of them proceeded to the home of Mr. Hee where they obtained his execution of the alleged last will and testament…in which will Mr. Hartley and W. Harold Payne were named as Co-Executors and the Watch Tower Bible and Tract Society of Pennsylvania was made the sole beneficiary of the will. The will also be directed that the funeral services of the testator were to be conducted by a minister of Jehovah’s Witnesses under the direction of the Watch Tower Bible and Tract Society of Pennsylvania. No provision was made for the church of which he was a member, or for any services by the minister of his own church in any manner whatsoever.” Id. at 846.
“Immediately after the execution of the will, the named executor who had prepared and obtained the execution of the will immediately forward the original of the will to the main office of the Watch Tower Bible and Tract Society of Pennsylvania at 124 Columbia Heights, Brooklyn, New York, where it remained in the hands of officials of that corporation until the decedent’s death some seventy-five (75) days later.” Id. at 846.
“No copy of the will was left with the testator. The decedent’s closest friends and the minister had no knowledge of the execution of a last will and testament and no disclosure of its existence was made until after the death of Mr. Hee.” Id. at 846.
Under these circumstances, the Miami Dade County probate court judge found that:
• Mr. Hee’s last will and testament was unnatural in its content and disposition;
• The will was procured and prepared by the sole beneficiary-the Watch Tower Bible (either individually or by its agents, officers or members).
• The Watch Tower Bible members were the sole witnesses to the execution of the will.
• Mr. Hee’s will was kept in the possession of the Watch Tower Bible members without disclosure to anyone.
As I have written in prior blogs, the presence of the above factors creates a presumption of undue influence. Where the presumption arises, the burden is upon the proponent of the will to show by a preponderance of the evidence that the will was in truth and fact the free and voluntary act of the testator and expressed his wish and desires and was not the instrument of undue influence, overreaching or coercion. In the Estate of Hee, the Court had no difficulty concluding that there was a complete failure on the part of the proponent of the will to carry this burden of proof, and therefore the will proffered by the Watch Tower Bible members was declared invalid as the result of undue influence.
Elderly persons in Florida are vulnerable and exposed to too many scams. Unfortunately, they are not exempt from fraudulent fleecing by religious organizations. I was involved in a case where a nationally known charity engaged in approximately twenty-seven forms of communication until an elderly lady, who had no prior significant history of charitable giving, excluded her son and left her estate to the charity. The drafting attorney of the will was referred to the 92-year-old lady by the charity. This and other similar incidents should remind us to remain mindful of the careful scrutiny that must be given to any gift by a person susceptible to undue influence, even religious influence. This suspicion should not be suspended merely because it requires us to examine a gift by an elderly person to a church, synagogue, or a television evangelist.