In 1997, Evelyn Worley’s son Dwight assisted her in opening a $100,000 Transfer On Death (“TOD”) account where he worked. Dwight was designated as the sole beneficiary of the account. In 2005, Evelyn signed a power of attorney (“POA”) naming Dwight as her agent. In 2008, she signed a will naming Dwight as her executor and distributing her assets equally among her three sons, Dwight, Richard and Daniel. In 2009, she was diagnosed with mild dementia.

In November 2011, Evelyn moved to an assisted living facility. After a few weeks, she began complaining to her three sons that she wanted to return to her home. In December 2011, her son Richard brought her to an attorney and had her sign a new POA, naming Richard as her agent. Richard then removed his mother from the assisted living facility and returned her to her home, where she remained until a 2013 move to a nursing facility. In January 2012, Evelyn signed a new Will, again leaving her estate to her sons in equal shares, but this time naming Richard as executor.

Dwight and Daniel filed an Order to Show Cause seeking to invalidate the 2011 POA. In 2013, they sought to be appointed as co-guardians of their mother.

Following a trial, the trial judge ruled that the 2011 POA was valid: although there was a presumption of undue influence by Richard (based on his special relationship with his mother and suspicious circumstances surrounding the execution of the POA), Richard had successfully rebutted that presumption and had abided by his mother’s wishes to assist her in returning to her home. The judge found that Evelyn had the capacity to express an opinion regarding her living arrangements, and to know that Richard would carry out those wishes. However, the judge ruled that the 2012 Will was invalid, because Richard had not established that it was Evelyn’s “voluntary and knowing act.” The judge also appointed Richard as Evelyn’s guardian, despite his presumed undue influence. As to the parties’ request that counsel fees be paid from Evelyn’s estate, the judge awarded $2,500 to each side, but ruled that they were responsible for their remaining legal fees because, by the time the case went to trial, it was merely a “straight-out a fight between brothers…. [Evelyn] should certainly not have to fund the sole source of stress in her life.” On appeal, these rulings were affirmed.

However, the Appellate Division reversed the trial court on one issue. The trial judge had ordered the beneficiary designation to be changed on the TOD account, so that Evelyn’s sons would be equal beneficiaries. The appellate court noted that the TOD account was opened 15 years before the litigation and, despite her general statements that she wanted her three sons treated equally, the evidence demonstrated that Evelyn did not always treat them equally, having made significant gifts (or offers of gifts) to other sons in roughly the same amount during her lifetime:

We find it a leap to conclude that after so many years of the beneficiary designation remaining unchanged, Evelyn’s generalized statement that she wanted all her sons to be treated equally after her death was a statement of her probable intent to change the beneficiary of the TOD account.

Therefore, the Appellate Division reversed the trial court’s decision to change the beneficiary designation on this non-probate asset.

A copy of In re Worley can be found here – Matter of Evelyn Worley

For additional information concerning probate litigation and will contests, visit: