May is Elder Abuse Prevention Month

May is Elder Abuse Prevention Month and in light of this the Disability and Elder Law Attorney’s Association welcomed Harris County District Attorney Pat Lykos as its keynote speaker this month. Judge Lykos was joined by Kate Dolan, Assistant District Attorney in charge of the Elder Abuse Division.

The speech focused on the common causes of Elder Abuse, the most frequent offenders, and the reason that a majority of these crimes go unreported. Not surprisingly the common theme in most of these cases involves family members seeking money from elderly parents or grandparents. However such crimes are not limited to monetary exploitation and can include physical, psychological, and sexual abuse. Unfortunately a vast majority of these crimes go unreported because of the strong emotional bond between elderly victims and the abusive family member and/or the embarrassment that naturally stems from being a victim of such abuse.

The presentation wrapped up with a rundown of the reporting guidelines which are listed in the Human Resources Code Section 48.051. Such section states that a person having cause to believe that an elderly or disabled person is being abused, neglected, or exploited, shall report the information immediately to the authorities. Such duty applies without exception to a person whose knowledge concerning possible abuse, neglect, or exploitation is obtained during the scope of the person’s employment or whose professional communications are generally confidential, including an attorney, clergy member, medical practitioner, social worker, and mental health professional.

The report may be made orally or in writing and needs to include not only the name, age, and address of the elderly or disabled person but also the name and address of any person responsible for that person’s care; the nature and extent of the person’s condition; the basis of the reporter’s knowledge; and any other relevant information.

Such reports can be made to the police by dialing 911, Adult Protective Services (APS), Department of Aging and Disablity Services (DADS); or the County Attorney’s Office Protective Division, by calling Celilia Longoria at 713-578-2181.

Please help do your part to prevent this rapidly increasing problem. If you suspect that an elderly or disabled person is the victim of abuse, please contact one of the departments listed above or give us a call at 713-260-3926.

This Week in Probate Litigation Appeals

Case: In the Estate of Minnie Ola Kremer
Court: Ninth Court of Appeals – Beaumont

In this Will contest from Beaumont, we get one of the rare cases where undue influence was proven in the trial court, and managed to hold up at the Court of Appeals. Pearl Graef probated the 1989 will of her sister, Minnie Ola Kremer. Nearly two years later, Charles Lester Smith, a friend of Minnie’s, filed a motion to set aside the 1989 Will and instead probate a Will allegedly written by Minnie in 2004.

After a trial, the jury found that Minnie lacked testamentary capacity when she executed the 2004 Will and that Smith procured the 2004 Will by exercising undue influence over Minnie. The jury also found that Smith failed to bring his proceeding in good faith and therefore denied him attorney’s fees.

Smith appealed the jury’s findings. In his first issue, he challenged the probate court’s admission of Minnie’s nursing home records. According to Smith, such records were inadmissible because they were not supported by expert testimony. At trial, Smith objected under Rule 403 of the Texas Rules of Evidence that the probative value was outweighed by the prejudicial effect.

The Court of Appeals stated that the trial court has the discretion to admit or exclude evidence. The Court noted that relevant medical records are admissible as records of regularly conducted activity if they have been properly authenticated. However, Smith did not complain of improper authentication. Therefore, the Court concluded that the records were relevant and admissible.

In his second issue, Smith objected to the lack of expert medical testimony to prove that the Decedent lacked testamentary capacity when she signed the 2004 Will. The Court once again shot this down stating that testamentary capacity need not be proved by expert medical testimony and the requisite proof is within the common knowledge of laypersons.

In his third and final issue, Smith contends that there was not sufficient evidence to prove undue influence. Because such cases are rare, this case is valuable to anyone looking to try an undue influence claim as the Court gives a great rundown of the elements needed and what was produced at trial in this matter.

The Court first laid out the factors to consider in such a case including: (1) the nature and type of relationship existing between the testator, the contestants and the party accused of exerting such influence; (2) the opportunities existing for the exertion of the type of influence or deception possessed or employed; (3) the circumstances surrounding the drafting and execution of the testament; (4) the existence of a fraudulent motive; (5) whether there has been an habitual subjection of the testator to the control of another; (6) the state of the testator‟s mind at the time of the execution of the testament; (7) the testator‟s mental or physical incapacity to resist or the susceptibility of the testator‟s mind to the type and extent of the influence exerted; (8) words and acts of the testator; (9) weakness of mind and body of the testator, whether produced by infirmities of age or by disease or otherwise; and (10) whether the testament executed is unnatural in its terms of disposition of property.

In reviewing all of the evidence, the Court concluded that the jury could have concluded that Minnie and Smith were friends who had a creditor-debtor relationship, and in light of the relationship between the parties, the jury could have reasonably concluded that Minnie’s gift was an unnatural disposition of her estate. Additionally, the Court found that the jury could also have reasonably inferred that the circumstances involved in the creation and execution of Minnie’s 2004 Will did not reflect the normal manner under which testators create wills. The jury could have also considered that Smith, not Minnie, paid for the attorney’s services, and that Smith arranged for his friends to serve as witnesses at the will signing ceremony.

Finally, the Court noted that when Minnie executed the 2004 Will, she was ninety years of age. She was in poor health and unable to care for herself. She had only a sixth grade education. The jury could have reasonably concluded that Minnie was susceptible to being unduly influenced during the ceremony in light of her minimal educational background, her poor hearing, and her generally poor state of health around the time she signed the 2004 Will, together with evidence showing that Minnie was not provided with supplemental oxygen during the will ceremony, and that neither before or during the ceremony, did Minnie question why the 2004 Will left the home in which Pearl was living to the Smiths. The jury could reasonably conclude from all of the circumstances that Minnie did not have the strength of mind or body to exercise her own will when she executed the 2004 Will.

In light of the fact that the Court must look at the evidence in the light most favorable to the jury verdict in this matter, the Court stated that there was sufficient evidence to find undue influence.

What does this mean for you? If you feel someone you know has been a victim of undue influence, call us today for a free consultation.