Eddie Black had been a long-time friend of Lillie Davis. Eddie had been married to Lillie’s best friend. After both their spouses passed away, Eddie bought a house, put it in Lillie’s name and they lived together in the house for a number of years. Some months after Lillie had to enter a nursing home, she deeded the house to Eddie. She also executed new signature cards with her bank, changing her individual account into a joint account with Eddie, including a right of survivorship (ROS). When Lillie died, her will left everything in her estate to her nephew, Mark and named him as independent executor.

Mark filed suit to set aside both the deed to Eddie and the bank account signature card, contending that Lillie did not have mental capacity to execute them and/or that she was acting under Eddie’s undue influence.

Imagine that you are sitting on a jury charged with deciding whether Lillie had been competent or whether she had been unduly influenced to execute the deed and signature card.

Would You Find that Lillie Lacked Mental Capacity?

The judge instructs the jury that a person who signs a document is presumed to have read and understood the document, unless the jury determines that the person did not have the mental capacity to do so. The judge further instructs that just because a person is elderly under the law they are not presumed to be incompetent because of their age. In fact, the judge tells the jury that all persons are presumed to be competent under the law, the jury is to assume competence unless substantial evidence shows otherwise.

The judge also tells the jury that a person may be incompetent at one time and not competent at another time. You are told that you are to take an expert’s testimony as to the facts stated as true, but you are not bound by that expert’s conclusions or deductions from the facts, even if they are not contradicted by other expert testimony.

Then you are given this evidence at trial:

Conflicting evidence whether Lillie was competent during the time frame she signed the deed and the signature card; No evidence as to whether Lillie was competent at the specific times she signed the deed and the signature card; No one who assisted Lillie in creating the signature card or in signing the deed testifies at the trial; Two experts testify that her general mental capacity was diminished but their testimony does not address whether she had the understanding to sign the deed or the signature card; One expert testifies that persons with diminished capacity can have periods of lucidity and understanding; Eddie testifies that Lillie was coherent and mentally capable to handle her affairs when he visited her twice a week; and Mark testifies that Lillie was not capable of handling her affairs. Would You Find that Eddie Unduly Influenced Lillie?

The judge tells you that undue influence is defined as “such dominion and control

exercised over the mind of the person executing the document, that under the facts and circumstances existing, that the person’s free will was overcome by the influence.” He informs you that, in effect, this would mean that Eddie’s will was substituted for Lillie’s will, such that she was prevented from exercising her own discretion and causing her to do what she would not have done had it not been for the dominion and control that Eddie exercised over her.

At the same trial, you are presented with this evidence:

Eddie was not present when Lillie signed the deed, nor was he present when she completed the signature card; The deed and the signature care were presented to Lillie by third parties who were not related to either Eddie and were not under Eddie’s control; Eddie testifies that he did not know that Lillie was going to change her account to make it a joint account with a ROS; Eddie testifies that he asked Lillie to deed the house to him so he could sell it to pay her medical bills, if needed; A psychologist testifies that Lillie’s general state was such that she would have been susceptible to suggestions of persons she trusted; and Eddie testifies that Lillie was independent and made her own decisions based upon his observations of her when he visited twice a week Decisions Regarding Competency or Undue Influence Often Rest on Credibility of Witnesses

In a case with similar facts, a jury found that the decedent was competent and that she was not unduly influenced by the person to whom property was deeded and whom the decedent designated ROS beneficiary of a bank account. To reach its decision, any jury has to judge the credibility of the witnesses giving testimony. The jury also has to decide how much weight to give to each witness’ testimony as to the material facts.

The jury in the actual case evidently did not feel that the experts’ testimony deserved more weight than the testimony of lay witnesses who testified that the decedent was competent and not unduly influenced.

In determining whether a witness is credible, each juror will take into account the demeanor and presentation of the witness. As a juror, you may be influenced in determining credibility by subjective reactions to a witness, consciously or unconsciously. You might decide the presented hypothetical case one way from looking at the cold facts on paper in this column and come to an entirely different conclusion were you to observe the witnesses and hear the testimony. The fact that this is true with all cases is why lawyers often advise clients that taking any case to court is a roll of the dice.

Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm, whose principal office is in Fort Worth, Texas. She lives and practices in Somervell County. If you have questions or concerns, please contact her by email at swreed2@yahoo.com or by phone at 254.797.0211.