Anna Sarconi, when apparently with full testamentary capacity, in April of 1946, by will, bequeathed her estate to her granddaughter, the caveatrix. In August, 1949, after becoming afflicted with her fatal illness, and when she was in the hospital under an oxygen tent, another will disposing of her estate in equal shares to her four children was presented for execution by an attorney representing William Sarconi, one of her four children.

So begins the 1955 Colorado Supreme Court majority opinion in Ofstad v. Sarconi (131 Colo. 541 [Colo. 1955]). Ms. Sarconi signed the new will—it turns out she wasn’t wearing a hearing aid and couldn’t hear a damn thing.

According to a different decision in an earlier Ofstad v. Sarconi (252 P.2d 94, 126, Colo. 565, 1952), Ms. Sarconi was struggling with “mental derangement” due to physical ailments at the time of the signing of the new will.

In a previous post, I wrote about testamentary capacity, or what it takes to be competent to write and sign a will. What is often forgotten in trust and estate contests is that, even if a person is “of sound mind,” there may be issues of undue influence that can cause a will to be invalidated. In Colorado, the Supreme Court has given the following guidelines that could indicate undue influence:

1. There is a confidential relationship between the testator (the person writing the will) and the influencer,

2. There are terms in the will that clearly benefit the influencer,

3. There is some sort of mental and/or physical illness in the testator, and

4. The new will is kept a secret from the testator’s natural heirs (the children, grandchildren, etc. who would normally expect to inherit money or property).

The Ofstad Court also ruled that the following should be taken into consideration:

1. The physical condition of the testator, arising from age, sickness, suffering, by reason of disease or otherwise, or any other cause,

2. The condition of the testator’s mind at and before the time of the execution of the will in controversy,

3. the execution of the alleged will and its contents,

4. the execution of any prior will by the testator,

5. the situation of the parties present when the alleged will was executed,

6. the relations existing between the testator and the parties related to the will contest respectively at and before the execution of the will in question,

7. the testator’s family and connections,

8. the terms upon which the testator stands with family and connections,

9. the claims family or connections might have had upon her money/property by reason of blood relationship or otherwise,

10. the condition and relative situation of the legatees and devises named in the will,

11. the situation of the testator and the circumstances under which the will was made,

12. previous conduct on the part of the testator which might indicate his/her normal testamentary wishes, and

13. every fact or circumstance which tends to throw any light upon the question of potential undue influence.

Testamentary capacity, and being of sound mind, is a very low bar. Most people, even those with fairly significant mental or cognitive issues, can be found to be “of sound mind.” But, undue influence is wide open to interpretation. The fact-finder is supposed to use “every fact or circumstance which tends to throw any light upon the question of potential undue influence” to make a determination about whether or not the person writing the will was coerced into making changes favorable to the influencer.

This is an area where a skilled attorney and a forensic psychologist can help you understand if you have a valid claim that your loved one was unduly influenced to change his or her will.

it turns out the 1952 Colorado Supreme Court found Ms. Sarconi’s “alleged will’ that she signed when she was mentally deranged, dying in an oxygen tent, and without her hearing aid highly suspect. They sent the issue back to the trial court to determine whether or not she had been unduly influenced by her son to change her will so that he would inherit the money she wanted to go solely to her granddaughter.

And, as a final note, when I conduct evaluations for testamentary capacity and undue influence, my goal is to get to the truth of what the will-writer wants. Even if the person is awful and made terrible testamentary decisions, I want those decisions to be upheld, assuming the person knew what he/she was doing and the decisions were made free from undue influence.