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VICTIM OR THE CRIME (An Age Old Story of Undue Influence)


24 October, 2016

VICTIM OR THE CRIME (An Age Old Story of Undue Influence)

There are various attributes of life – such as… awareness, growth, autonomy, will.  It is possible to kill or attempt to kill one of these attributes without actually destroying the body.  Thus, we may “break” a horse or even a child without harming a hair.”  M. Scott Peck, People of the Lie   

BORN TO DECEIVE

Joseph and Dorothy Cook lived in Shreveport, Louisiana.  They raised three children:  Robert, David and Dianne, in that order.  Robert, being the first born, took on common traits of an oldest child – he was structured and responsible.  David was a typical middle child – amiable and diplomatic.  Dianne was the youngest child.  As the baby of the family, she received a lot of attention and grew to expect it.  She learned how to manipulate to get it. 

Dianne grew up and moved to California and lived there for most of her adult life.  When her mother, Dorothy, became ill, Dianne moved back to Louisiana.  Dorothy passed away in 2005 at the age of 84.  Joseph survived Dorothy, but his health took a sharp decline soon after her passing, so Dianne moved next door to help care for him.  This is when the trouble started according to the Louisiana Second Circuit Court of Appeal in a new case that adds to the scant body of law of “undue influence.” Succession of Joseph Robert Cook, 189 So.2d 409 (La. App. 2 Cir. 2016).

A VIEW FROM BEHIND

In his younger days, Joseph Cook made his living as a certified public accountant and lived well below his means – in a trailer park to be exact.  Unbeknownst to most, John actually owned the trailer park that he lived in and a lot of other property that he purchased with money he saved from his CPA practice.  He was the “millionaire next door”. 

Joseph contributed most of his assets to a corporation he established for his three children, namely Rodidaco, Inc. (“Rodidaco”).  Rodidaco was not owned by Joseph, but rather his three children, Robert, David and Dianne.  Joseph served as “President” and paid himself a salary of his own choosing and basically “lived out of” the corporation.  Rodidaco would become “the center of the…family discord” per the Second Circuit.

A VIEW FROM THE COUCH

Manipulation is a subtle thing and, therefore, very hard to prove, especially in a court of law.  M. Scott Peck wrote an entire book on the subject called People of the Lie, in which he states “[i]f evil were easy to recognize, identify and manage, there would be no need for this book.”  It is a masterful description of the propensity of some people to control others through confusion, deceit and manipulation.

A VIEW FROM THE BENCH

“Undue influence” is a legal concept used to invalidate a donation or bequest as being the product of some form of coercion or manipulation.  The statute reads as follows:

“A donation … shall be declared null and void upon proof that it is the product of influence by another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor.”  La. Civ. Code Art. 1479.

“Because the ‘objective aspects’ of undue influence are generally veiled in secrecy, … the proof of undue influence is either largely or entirely circumstantial.”  La. C.C. 1479, cmt. (b).  The burden of proof requires “clear and convincing evidence,” which is a very high threshold in legal terms.  There is very little case law on the book -- because undue influence claims are very difficult to win -- So the present case is an important addition.

A VIEW FROM THE TRENCHES

Imagine this:  You represent a twelve-year-old boy.  His ten-year-old little sister just slapped herself in the face, mustered up some tears from the faucet, cries out uncontrollably and races into her daddy’s lap for safety.  The father coddles his teary-eyed hysterical daughter (who flashes a quick smile at her brother before returning to her “hurt face”).  The father becomes enraged at his son.  Your job is to prove – by clear and convincing evidence – that the girl slapped herself in the face and faked the whole scene.  There are only two people on earth who know the truth – the culprit and the victim.  Proving which one is which is a tough case for any lawyer.

BACK TO THE STORY

Dianne lived next door to Joseph and became enmeshed in his affairs.  She began to intercept and filter his communications.  Joseph gave Dianne a General Power of Attorney, which gave her authority to make all financial and health care decisions for him.  She bought a condominium in Gulf Shores, Alabama and took Joseph with her for substantial amounts of time. She accompanied Joseph to his doctor visits and communicated directly with his healthcare providers.  She read his mail, paid his bills, and eventually stepped into Joseph’s shoes as acting President of Rodidaco. 

Joseph and David collectively owned two-thirds (2/3) of Rodadico - enough to “control” the company.  However, they declined to exercise any control out of respect for their father until Dianne claimed that she was sole owner of Rodidaco.  Robert and David became alarmed and asked to see the financial records.  Dianne (not Joseph) made some of the records available.  When Robert and David claimed the records were not complete, Dianne hired a lawyer.

Robert and David, seeking to protect their interests, immediately called a shareholder meeting and removed Joseph as President, clearly explaining they did so because Joseph had “abdicated all his functions regarding Rodidaco to Dianne.”  Dianne participated by telephone, and recorded the whole meeting.   Dianne then took the recording to Joseph and played it several times, which incited eighty-nine-year-old Joseph to believe that his sons had stolen something from him.

Dianne next hired an attorney for Joseph to file a lawsuit – a “Petition on Money Loaned” -- claiming that Rodidaco owed him about four hundred thousand ($400,000.00) dollars.  Dianne then hired another lawyer in the same firm to prepare a new will for Joseph, which purported to “leave all Joseph’s property, including the claim against Rodidaco to Dianne.” 

Joseph passed away on January 18, 2013 – about six months after executing the new will.  Seven (7) days later, Dianne filed a petition to probate Joseph’s will.  Robert and David immediately filed suit to annul (invalidate) the will.

VICTIM OR THE CRIME

Robert and David claimed that Dianne unduly influenced (or manipulated) Joseph to change his will.  They argued that Dianne “created a divisive atmosphere” in order to serve her “own vindictive and financial/litigious interests and that “she substituted their father’s true testamentary wishes for her own by surreptitiously convincing him to execute a new will….” Dianne claimed that Joseph disinherited Robert and David because he “believed Dianne would not see a dime out of the corporation” and “because of what Robert and David had done” to Joseph by removing him as President of Rodidaco. 

The trial lasted two days and the parties presented “dueling experts” on Joseph’s mental condition. Witnesses included the attorney who drafted Joseph’s new will, friends and relatives, all of whom basically said that Joseph was absolutely capable of making his own decisions.

The lower court agreed that Joseph was perfectly capable of making is own decisions, but held that even though “Joseph had capacity to execute the testament,..the level of influence Dianne had over Joseph was such that it destroyed his free agency and caused her volition to be substituted for his.”  In other words, Joseph had capacity, but Dianne unduly influenced her father to execute a new will leaving her everything.

AN INVISIBLE WRONG

When approaching a claim of undue influence, it is important note that “capacity” and “undue influence” are completely different concepts.  A person lacks “capacity” if they are unable to generally comprehend the nature and consequences of their actions.  Conditions such as dementia affect the mental “capacity” of a person.    

In this case, the Court held that Joseph knew exactly what he was doing and had full legal capacity to execute a will.  However, Joseph’s decision to change his will was driven by false impressions created by Dianne.  She manipulated Joseph to such an extent that his decision should be considered invalid because it was premised on a fiction created by Dianne, which should really be considered a form of fraud.  In the Court’s own words, “Dianne's actions after the shareholder meeting were taken for the purpose of creating resentment by Joseph toward his sons and inflaming his anger at his removal as president of Rodidaco for her own benefit.

The case of the Succession of Joseph Robert Cook is a very important addition to Louisiana jurisprudence because it adds to the scant foundation of law which supports an adequate remedy for an invisible wrong – undue influence.

THE AGE OLD STORY

You are a twelve-year-old boy.  Your ten-year-old little sister just slapped herself in the face, mustered up some tears from the faucet, cried out uncontrollably, and ran to your daddy’s lap for safety.  Your father coddles your sister (who flashes you a quick smile before returning to her “hurt face”) and punishes you for hitting her.  There are only two people on earth who know the truth – the culprit and the victim.  It is an age old story of undue influence.

Theus Law Offices provides a complete range of estate planning services, including wills, trust, probate, successions and estate litigation. If you are facing an estate planning issue or will contest and need a Louisiana estate planning attorney or probate lawyer in Alexandria, Lafayette, Lake Charles, Baton Rouge, New Orleans, Shreveport, Monroe, Central Louisiana or elsewhere, let our estate planning lawyers and probate litigation attorneys help you.

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