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Trial Court Must Decide If Deed Obtained By Undue Influence

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MARCH 13, 2000 VOLUME 7, NUMBER 37

“Undue influence” is usually thought of in connection with provisions in a will. It can also be cited in attempts to set aside transfers made during life, as a recent North Carolina case illustrates.

In early 1996 Irene J. Stephenson signed a deed conveying her home and sixteen acres of land to the Wake Forest Baptist Church. The deed reserved a “life estate” to Ms. Stephenson—that is, it allowed her to live on the property, rent it and use it as she wished for the rest of her life.

Shortly after she signed the deed, Ms. Stephenson moved to set it aside. She claimed that church members had brought the deed (and an attorney) to the nursing home for her to sign, and that no attempt had been made to involve her family, her attorney or the agent she had named in her durable power of attorney.

Ms. Stephenson had been eighty-seven years old when she signed, and had been living at a local nursing home for two years. Her mental health had allegedly begun to fail. In fact, Ms. Stephenson died before the case could be resolved, and it was continued by her probate estate.

After the complaint was filed, the Wake Forest Baptist Church moved for summary judgment, which was granted. Ms. Stephenson’s estate appealed.

The original complaint had not included a claim that church members unduly influenced Ms. Stephenson to sign the deed. The Court of Appeals directed that the case be returned for a decision on the possibility anyway, and it provided some guidance on what to look for when analyzing a transaction for undue influence. Among the factors the court found might tend to indicate undue influence in this or another transaction:

“Old age” and mental weakness of the signer
Change from prior disposition of the property
Benefits flowing to a non-relative
Involvement of the beneficiary in procuring the transfer
Disinheritance of the “natural objects” of the signer’s bounty
Constant association and supervision by the beneficiary, as when the signer lives with the beneficiary
Lack of opportunity for others to visit the signer

In Ms. Stephenson’s case, said the court, there was at least some evidence on several of those elements.

Ms. Stephenson’s estate should be permitted to put on its case for undue influence, and so the case was remanded for further proceedings. Meanwhile, allegations of interference with a contract and unfair trade practices were dismissed. Stephenson v. Warren, March 7, 2000.

Arizona law is very similar to the North Carolina court’s holding. In a 1966 case the Arizona Supreme Court outlined eight factors tending to show undue influence, with much the same effect. One subtle (but important) difference: Arizona cases have expressly held since at least the mid-1940s that “advanced age” (by itself, at least) can not give rise to any presumption of undue influence.

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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.