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Jury Finds Undue Influence, Mistake In Will Of 86-Year-Old

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APRIL 19, 1999 VOLUME 6, NUMBER 42

Carmen Herbert was 83 when she injured her leg in a golf car accident. She was treated at a local hospital, and then released to the Laniolu Convalescent Home in Hawai’i. A few days later, she was diagnosed with “chronic non-healing leg ulcers and organic brain syndrome.” Two days after that, she signed a will, leaving about $1.5 million to the First Church of Christ Scientist in Honolulu. A few days later, she signed a power of attorney giving two friends authority to handle her affairs.

Ms. Herbert returned to her home after her short stay in the nursing home. She employed a live-in housekeeper to help at home. Increasingly, she relied on the help of Hanno Soth, a 26-year-old Canadian citizen who had befriended her. In fact, in December of 1989 Ms. Herbert signed a revocation of the power of attorney she had given to her friends, executed a new power of attorney in favor of Mr. Soth and, finally, signed a new will leaving the bulk of her estate to Soth.

When Ms. Herbert died six months later, Mr. Soth filed her 1989 will with the Hawai’i probate court. The First Church of Christ Scientist objected, alleging that he had executed undue influence on Ms. Herbert, that she was incompetent at the time she signed it, and that she did not know the contents of the will when she signed it. The issue was submitted to a jury after a month-long trial and three days of deliberation, a jury decided that the will was invalid.

Mr. Soth appealed, first to the Hawai’i Court of Appeals and then to the Hawai’i Supreme Court. Last month, the state’s high court agreed with the jury, and ordered that the will not be admitted to probate.

In its review of the Herbert case, the court noted that the live-in caretaker had testified that Ms. Herbert’s memory had deteriorated after her release from the nursing home. She also described Soth as “cunning, calculating, and secretive,” though the court ruled that the jury should not have heard her opinion of Soth’s character.

The jury had also heard testimony about Soth’s immigration status (he had been served with a deportation notice the day before filing his probate petition, in which he alleged that he was a resident of Hawai’i), his future plans (before Ms. Herbert’s death he had planned to leave Hawai’i to attend law school, despite telling people he would stay and care for Ms. Herbert) and the possibility that Ms. Herbert was romantically interested in Mr. Soth (one witness testified that Ms. Herbert and Mr. Soth were seen holding hands and acting “lovie-dovie”).

In support of the 1989 will, Mr. Soth had produced testimony from several friends of Ms. Herbert, her financial advisor, Mr. Soth’s girlfriend (who testified that Ms. Herbert was fully aware of her relationship with Mr. Soth) and one of her physicians. Although the appellate court reviewed all that testimony, it found that there was sufficient evidence to support the jury’s finding that the will was invalid. Estate of Herbert, March 17, 1999.

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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.

Famous people's wills

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.