In Re Estate Of Burren

994 N.E.2d 1022 (2013)

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Nature of the Case

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Facts

Marion Burren brought her date, P, home to meet her parents. Marion's father, Glenn, got along well with P, who called Glenn 'Pops.' They continued to visit each other after Steven and Marion broke up in 1978. Glenn divorced Marion's mother in 1978, and that same year he started dating P's mother, Nancy Miner. P obtained his license to practice law in 1981. He represented Glenn in several real estate transactions, and he represented Marion in her divorce. In June 2003, Steven, acting as attorney for Glenn's sister, Pearl Burren, prepared a power of attorney in which Pearl appointed Glenn as her agent with the power to conduct financial transactions for her. Glenn wrote several checks to P on Pearl's account. When Pearl died in November 2003, Glenn inherited an investment account worth about $620,000, and real estate which Glenn sold, with P acting as his attorney, for more than $187,000. Glenn made his bank account a joint account, giving P the power to sign checks drawn on Glenn's account. Glenn signed a typewritten will that named P as the estate's executor. The will split the bulk of Glenn's estate into five equal parts, with one-fifth going to each of Glenn's three children, Marion Stewart, Linda Kemp, and Glenn Burren, Jr., and one-fifth going to each of P's children, Steven II and Katy Miner. Over the course of the following years, Glenn made out checks to P that totaled almost $500,000. At P's behest, Glenn signed a number of letters, on P's letterhead addressed to Glenn, regarding the checks. In 2006, Glenn signed forms P prepared that gave P a power of attorney to act on Glenn's behalf for both health care decisions and for Glenn's property. Glenn died and his net assets, which exceeded $800,000 in 2004, had dwindled to less than $350,000. P petitioned for probate of the will and for letters of office naming him executor of the estate. The court appointed P as executor. Marion and Linda contested the will and petitioned for the removal of P. Marion and Linda filed a citation to recover assets, asking the court to order P to pay to the estate $492,779.75, for the checks Glenn gave P after May 2003. Marion introduced into evidence a letter Glenn received in September 2004 from his investment advisor, advising Glenn not to increase his withdrawals from his account, which Glenn had limited to $2,000 per month. The letter indicated that as long as Glenn used only $2,000 per month, he reduced the balance in his account by only $3,500 per year. P said Glenn made him a joint owner of the bank account because Glenn did not trust his children, and Glenn wanted assurance that if anything happened to him, someone would pay his bills. The checks P cashed totaled $498,659.75. P did not remember why Glenn paid P money out of Pearl's account. P claimed he cashed the checks for Glenn, returning almost all of the money from the checks directly to Glenn. P claimed that the four letters Glenn approved showed that P gave the cash back to Glenn. P also prepared the letters that Glenn signed directing his investment advisor to issue checks to P. P admitted that he did not advise Glenn to seek independent legal advice. P tried to prove Glenn's actual expenses. The sum of the listed expenses, plus the checks appended to the exhibit, came to more than $480,000. P claimed he gave the cash from all of the checks he cashed back to Glenn, who then used the cash to pay the listed expenses. The court ruled that P presented 'no independent credible evidence to corroborate' his testimony. P had a fiduciary relationship with Glenn, and P benefitted from the transactions with Glenn, so the evidence raised a presumption that P exercised undue influence over Glenn. P failed to rebut the presumption of undue influence. The court entered a judgment P for $498,659.75 plus interest. P appealed.