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Beneficiary Deed Can Be Challenged For Undue Influence

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Beneficiary deed challenge

Can a beneficiary deed challenge be based  on alleged undue influence? Yes, in the same way that a will, a trust, or another writing could be challenged. A recent Arizona appellate decision spelled out some of the rules and details.

But what is a beneficiary deed?

First, a little introduction. Arizona is one of the 60% (or so) of states in which you can sign a deed that becomes effective on your death. Some states call them “TOD” (Transfer on Death) deeds, or revocable TOD deeds. Arizona’s law uses the simpler title: beneficiary deed. We’ve explained the concept before — several times, in fact.

The beneficiary deed is a useful mechanism for probate avoidance, but it’s not the best way to handle every circumstance. A living trust might be more appropriate for some.

But can an unhappy heir challenge the deed? Yes. A beneficiary deed challenge can be based on fraud, duress, mistake — or undue influence. And that brings us to Alex Brandt’s life story.

Alex Brandt’s personal life

Mr. Brandt dated Marilyn Sanders for several years. He proposed marriage, but they never did get married. They lived in California, but he moved to Arizona and bought a home. He also purchased some investment properties, and gave Ms. Sanders an ownership interest.

Several years later the couple broke up. Mr. Brandt moved on to another relationship, with a different Marilyn — this time Marilyn Mishkin. She moved in, he proposed marriage, but they never did get married. Along the way, Mr. Brandt signed and recorded a beneficiary deed naming Ms. Mishkin as beneficiary. But that beneficiary deed did not get challenged.

In 2005 the couple broke up. Mr. Brandt signed a new beneficiary deed — actually, he simply copied his old beneficiary deed, but named his niece Yvette Rosenberg as beneficiary. He recorded the new document — but that’s still not what led to a beneficiary deed challenge.

Three years later, Mr. Brandt and Ms. Sanders reconnected. Mr. Brandt visited her in California (she had moved back after they broke up) and returned her engagement ring from the failed engagement years before. Then the couple began to date again, and ultimately Ms. Sanders moved back to Arizona and moved in with Mr. Brandt.

A few years after that, Mr. Brandt got sick. Ms. Sanders stayed with him and cared for him — cooking meals, taking him to doctors’ appointments. In March, 2017, she took him to the hospital and signed him in. His diagnosis included “memory loss” and “cognitive impairment”.

The final beneficiary deed gets signed

A month after his hospitalization, Mr. Brandt signed a new beneficiary deed. Ms. Sanders was not involved, and he didn’t even tell her about it at the time. A few months later he surprised her on her birthday by giving her the recorded document.

The couple continued living together for almost a year before Mr. Brandt returned to the hospital. This time the medical team decided he was unable to make his own decisions. Mr. Brandt called the police and told them he was being held as a prisoner in the hospital. And, for the first time throughout this story, his family learned of his condition and circumstances.

Mr. Brandt’s niece came from her home in Canada to visit Mr. Brandt. He told her that he was afraid of Ms. Sanders, and that she was trying to kill him so she could steal his assets. He signed a new health care power of attorney naming his sister as agent. And then he was discharged to his home.

Mr. Brandt’s sister took care of him for a week, then left him in his home with Sanders providing care. Mr. Brandt’s sister and niece then returned to their home. Mr. Brandt died three months later.

The beneficiary deed challenge

After Mr. Brandt’s death his sister and niece learned for the first time about his beneficiary deed. The niece challenged its validity, alleging undue influence by Ms. Sanders.

The Arizona probate court heard the beneficiary deed challenge, but granted summary judgment in favor of Ms. Sanders after the niece put on her case. The judge ruled, among other things, that what Mr. Brandt said to his sister and niece long after he signed the beneficiary deed was not admissible in evidence at all.

The Arizona Court of Appeals agreed — but disagreed. The appellate judges acknowledged that a beneficiary deed challenge could be based on undue influence, and that the evidence of undue influence is usually indirect. They cited longstanding Arizona case law that identifies eight elements that might tend to show — and even create a presumption of — undue influence. Then they added a ninth.

The eight (or nine) indicators of undue influence

Referring back to a 1966 Arizona court case, the appellate judges identified these indicia of undue influence for the trial court to consider:

  1. Fraudulent representations by the beneficiary
  2. Hasty execution of the document
  3. Concealment of the execution
  4. Active involvement by the beneficiary
  5. Inconsistency with prior declarations
  6. Reasonableness of the action given circumstances, attitudes and family
  7. Susceptibility to undue influence
  8. The existence of a “confidential relationship”

Reviewing those eight indicators, the appellate court agreed that Mr. Brandt’s niece had not shown sufficient evidence of any one. Summary judgment dismissing her claim was appropriate on that basis. But, reasoned the judges, the beneficiary deed challenge should also have considered Mr. Brandt’s post-signing declarations, and his niece should have been permitted to introduce that evidence.

Consequently, the appellate court reversed the summary judgment order and sent the case back to the probate court for further evidence. Even in doing so, however, the appellate decision observes that there was “just enough evidence” to create a factual dispute — and not necessarily enough to support a judgment for Mr. Brandt’s niece. Rosenberg v. Sanders, May 31, 2022.

What’s the lesson in this beneficiary deed challenge?

We always try to find the meaningful lesson in the cases we describe. Several come to mind in Mr. Brandt’s beneficiary deed challenge:

  1. Mr. Brandt’s estate plan would have benefitted from a lawyer’s involvement. Beneficiary deeds might not have been the best way for him to plan his estate. A good lawyer might have suggested a living trust, along with powers of attorney, a will, and better attention to details. But, and perhaps most importantly, involvement of a lawyer would have provided evidence (admissible in the beneficiary deed challenge) of his actual wishes and thinking.
  2. Undue influence is notoriously difficult to prove. Even if Mr. Brandt’s family was deeply suspicious of Ms. Sanders’ behavior and involvement, the burden of proving undue influence if a significant challenge.
  3. One thing Mr. Brandt did very well: he made his decisions without involving his intended beneficiary. That made it easier for her to show that she wasn’t involved, didn’t come up with the idea, and didn’t try to bend him to her own will.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.