In re Estate of Johanna M. Morrell, deceased. Nebraska undue influence
This was an appeal from the County Court of Douglas County, Nebraska, Judge Lawrence E. Barrett. Judge Barrett had been confronted with two competing wills. He had granted summary judgment and held that the first will was valid and the second will was invalid on the grounds of undue influence. The beneficiary of the second will appealed to the Nebraska Court of Appeals.
In about 2007, Lee Lorenz befriended an elderly couple, Johanna and Wilson Morrell. He drove them to medical appointments, modified their home to make it handicapped accessible, and helped with their tax returns and financial affairs. Wilson died in 2009, and Lorenz continued to assist Johanna with various affairs. He later testified that she treated him like a son.
Johanna's only living family was siblings living on the East Coast. They visited Johanna only once during the 40 years before her death, but they testified that they maintained contact by mail and phone.
A friend and neighbor testified in an affidavit that in Johanna's last years, Lorenz was trying to isolate Johanna. Lorenz would get mad when Johanna socialized with the neighbor and was trying to isolate her and make her more dependent on him. The medical evidence indicated that Johanna was suffering from mild Alzheimer's disease at this time.
The first will was drafted in September 2010 by attorney John C. Chatelain. Johanna had contacted this attorney and said that she was concerned that Lorenz had become involved in her financial affairs. She told the lawyer that she was upset that Lorenz had been manipulating her accounts and she didn't want anything to go to Lorenz. The will that Chatelain drafted named the siblings as beneficiaries.
Later that month, alerted by a friend, the siblings came to Nebraska to visit Johanna. They were not aware that the will had been drafted. One friend of Johanna did testify that Johanna was upset at this time, because she thought the siblings wanted to put her in a home.
The second will was drafted in 2011 by Attorney Ralph E. Peppard, who had also given legal advice to Lorenz about accusations that Lorenz was taking advantage of Johanna. For example, Johanna at one point bought Lorenz a $41,000 boat. At this time, a temporary guardian had already been appointed by the court, and the temporary guardian was never informed of the new will.
The Court of Appeals agreed with the County Court that summary judgment was appropriate, and there was no issue of material fact regarding undue influence. As a matter of law, based upon the affidavits, the earlier will was valid and the later will was invalid due to undue influence.
The Court took particular note of the fact that the attorney who drafted the second will was aware of accusations of undue influence, and had provided legal advice to Lorenz regarding those accusations:
Despite [Attorney] Peppard's knowing about the Department's investigation into Lorenz' financial exploitation of Johanna and despite a temporary guardian-conservator's having been appointed, Peppard imprudently drafted and executed the March 2011 will for Johanna, giving all of her estate to the very person whom the Department was trying to protect her from. We find this conduct by a Nebraska lawyer to be deeply troubling.
For these reasons, the Court of Appeals affirmed.
22 Neb. App. 384 (Sept. 16, 2014)
Please see the original opinion for the court's exact language.
Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).
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