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I will need my initial discussion post and then 2 classmate response done.Read Case 52-2, McDaniel vs. McDaniel, on page 1192.What were the critical factors identified by the court with respect to undue influence and fraud in this case? How far should courts go to protect the elderly and infirm from undue influence and fraud, especially in cases, such as this one, in which the testator possessed adequate mental capacity at the time of the making of the 2007 will?To complete this assignment, review the Discussion Rubric document.CASE 52-2McDANIEL v. McDANIELSUPREME COURT OF GEORGIA 707 S.E.2D 60 (GA. 2011)Mary McDaniel was married to Luther McDaniel for over 60 years, until her death at age 87 in December 2006. Luther died two-and-a-half years later in June 2009 at the age of 92. The McDaniels had two sons, Charles (the caveator) and Jerry (the propounder).In 2002, Luther and Mary, who were then in their 80s, executed wills prepared by their attorney, James Clyde Morris, Jr., leaving everything to the surviving spouse, and if there was no surviving spouse, to their two sons equally. Mary suffered from Alzheimers-related dementia and other ailments, and by 2006, Luther could no longer care for her on his own. The caveator moved in with his parents in January 2006, and for the first part of that year, the propounder and his wife stayed with Luther some weekends to alleviate the burden on the caveator. Over the course of 2006, Luther and Mary added the caveator’s name to all their bank accounts so that he could manage their financial affairs for them.Luther exhibited several common signs of dementia. After Mary died, the propounder and his wife encouraged the caveator and his wife to take a much-needed vacation to Florida. Before leaving, the caveator drove Luther to several banks to remove Mary’s name from joint accounts worth several hundred thousand dollars. The caveator also closed an account at Regions Bank worth approximately $32,000 that had been held jointly in his and Mary’s names and transferred the funds into a new account in his name only. This was in accordance with Mary’s wishes to provide for her and Luther’s funerals.Unbeknownst to the caveator, the propounder and his wife believed that the caveator had stolen from Luther the roughly $600,000 they estimated was held in the joint bank accounts by having his name added to the accounts. They convinced Luther that the caveator had stolen all his money, that he was now “broke,” and that the caveator and his wife had moved to Florida and were not coming back. The testator was confused and distraught, and he repeated these claims to other relatives, as did the propounder.The propounder and his wife drove Luther to the banks, where he removed the caveator’s name from all the joint accounts. The propounder changed the locks on Luther’s house. The propounder also had Morris draft a new will in which Luther left all of his assets to the propounder other than 10% to his granddaughter and 1% to his grandson. The caveator was not included in the will. The propounder and his wife moved the testator into the basement of their home in December 2007, where he lived until his death in June 2009. The caveator was not allowed to visit Luther without first making an appointment with the propounder, and the propounder told the caveator that he was recording the visits. The propounder also attempted to make the caveator “sign in” on a register whenever he visited.After Luther’s death, the propounder filed a petition to probate the 2007 will, and the caveator objected. The probate court found that the 2007 will was not valid on the grounds of undue influence and fraud, and the propounder appealed.JUSTICE NAHMIASThe sole question in a proceeding to probate a will in solemn form is “whether the paper propounded is, or is not, the last will and testament of the deceased.” In re Estate of Corbitt, 454 S.E.2d 129 (1995). The result turns on three issues: (1) whether the document was properly executed; (2) whether the testator had the mental capacity to execute a will; and (3) whether the document was the result of undue influence, fraud, duress, or mistake. The caveator conceded due execution of the will, and the jury found in favor of the propounder on the issue of testamentary capacity. The propounder contends that the probate court erred in denying his motion for directed verdict on undue influence and fraud.“Undue influence ‘may take many forms and may operate through diverse channels.’” There is no requirement that the undue influence be directly attributable to the propounder or to a single beneficiary. Although evidence which merely shows an opportunity to influence is not itself sufficient, a Page 1193“caveat based upon the ground of undue influence may be supported by a wide range of evidence, as such influence can seldom be shown except by circumstantial evidence.” Bailey v. Edmundson, 630 S.E.2d 396 (2006). Absent legal error on the part of the probate court, a jury’s finding of undue influence will be affirmed “if there is any evidence to support the trier of fact’s determination.” Trotman v. Forrester, 279 Ga. 844, 845 (621 S.E.2d 724) (2005).The jury in this case was clearly authorized to find that the 2007 will was the result of undue influence. When the testator could no longer care for his sick wife of over 60 years, the caveator moved in with them and provided the care his mother and father needed with little help from the propounder. After Ms. McDaniel died, the propounder and his wife encouraged the caveator and his wife to leave the state for a vacation and in their absence poisoned the testator’s mind against the caveator, telling him falsely that the caveator had stolen all his money, that he was now broke, and that the caveator had abandoned him and would not return. The propounder and his wife also participated in the preparation of the 2007 will.Furthermore, acting under the influence of the propounder and his wife, the testator secured a restraining order that prevented the caveator from seeing him for six mo

nths after the caveator returned from Florida, and the propounder made sure that the caveator was never left alone with their father again. Although the jury found that the testator had sufficient testamentary capacity, he was elderly and showing signs of declining mental acuity before the 2007 will was executed, and his symptoms had increased after his wife passed just a few weeks earlier.Finally, the 2007 will radically changed the distribution of the estate envisioned by the testator’s 2002 will, which would have divided the estate equally between the testator’s two grown sons, to a scheme awarding 89% of the estate to the propounder and nothing to the caveator. We therefore conclude that evidence regarding “the circumstances and surroundings of the testator and his associations” authorized the jury’s finding that the 2007 will was the product of undue influence.There was also sufficient evidence to support the jury’s finding that the will was procured by fraud. The evidence showed that after the propounder and his wife encouraged the caveator and his wife to go on vacation in Florida, they embarked on a campaign to convince the testator that the caveator had stolen all his money, left him broke, and abandoned him by moving to Florida. These were misrepresentations, but they worked; the testator changed his will to disinherit the caveator completely. As a result of these misrepresentations, the testator went into the meeting with the attorney who drafted the 2007 will intending to leave his entire estate to the propounder, and he would have done so were it not for the attorney’s suggestion that he leave something to the caveator’s children, who were the testator’s grandchildren. Accordingly, we conclude that the evidence supports the jury’s finding that the 2007 will was procured through misrepresentation and fraudulent practices upon the testator’s fears, affections, or sympathies.The evidence supports the jury’s findings of undue influence and fraud, and the probate court’s evidentiary rulings were not an abuse of discretion.AFFIRMED in favor of the appellee.CRITICAL THINKINGWhat were the critical factors identified by the court with respect to undue influence and fraud in this case?ETHICAL DECISION MAKINGHow far should courts go to protect the elderly and infirm from undue influence and fraud, especially in cases, such as this one, in which the testator possessed adequate mental capacity at the time of the making of the 2007 will?Legal Principle: Even when a will is legally valid (i.e., is signed and in writing), individuals can contest the will. For example, they can claim that the will was created under undue influence. My 1st classmate response neededWeek 2 Discussion 2Brad Kulacz posted Mar 11, 2021 12:17 PMHello everyone,The critical factors identified by the court with respect to undue influence were; was the will properly executed, did that testator (the father) have the mental capacity to create the will, and was it created under undue influence or fraud. (Kubasek, 2017) The fact that the propounder took advantage of this fathers diminished mental capacity to “poison” his mind against his other son. Convincing him that the caveator stole $600,000 from him and he was now broke. The propounder then used his influence to direct his father to alter the bank account structure and amend his 2002 will. The change in the will profoundly benefited the propounder eliminating the caveator. (Kubasek, 2017)The courts have a responsibility to protect the vulnerable, elderly, and those with diminished mental capacity. Those that are charged with their care have a fiduciary responsibility to the other. There is also a responsibility on the attorney to check for capacity before proceeding with the creation or altering of the will. Financial institutions also have procedures to help identify potential elder abuse and should be reporting those to the appropriate state agency.It is unfortunate that the estate planning in 2002 did not include power of attorney appointment or placing the assets in a trust. This would have further defined the individuals fiduciary responsibility to the father.BradReferencesKubasek, N. K. (2017). Dynamic Business Law, Fourth Edition. In N. K. Kubasek, Dynamic Business Law, Fourth Edition (pp. 1192-1193). New York: McGraw-Hill Education.My 2nd response needed Estate planningJen Bernasconi posted Mar 11, 2021 3:25 PMIn the McDaniel Vs. McDaniel case, the critical factors involved found by the Jury and justice Nahmias, is that the propounder and his wife influenced the caveator and his wife to take a “long vacation” in Florida. The propounder then delivered false accusations to Luther and the family accusing the caveator of stealing money and fleeing to Florida. The propounder told Luther that he was now broke. With this news, Luther was in disarray, his mental health was also deteriorating and he now did not trust the caveator resulting in a restraining order. All of this was due to the fact of being under the influence of the propounder. Luther was showing signs of mental health decline before the new will was even made. Therefore, the will was created under undue influence by the propounder and his wife. The propounder misrepresented Luther and the caveator, and showed fradulant actions. He used Luthers fear and emotions to scare him in to creating a new will. These actions would fall under the category of undue influence. Honestly, this case is very sad and heart-wrenching to read. I believe courts should go as far as possible to protect the elderly. Maybe implement a double check system when wills are updated after a certain age. I believe the lawyer who helped create the will should have asked more question and have been more involved before altering the will. I would assume he would of raised some eyebrows from the propounders requests. Possibly needing a legal judgement before altering a will after a certain age as well. It is sad that family member would even go so far to do this to their own blood. Kubasek, N., et al., (2017). Dynamic business law (4th ed.). New York, NY: McGraw-Hill.