Adrian Folcher and his first wife Marie had owned several homes. Mary died and Folcher married Tambascia. He sold one property giving Tambascia $125,000 and each child $20,000. Folcher and Tambascia then entered into a post-marital agreement which provided that their incomes would remain separate, they would share expenses associated with the Tambascia home, and that upon the death of one spouse, any real estate that they owned jointly would be held in trust for the benefit of the surviving spouse until his or her death.

Folcher later made a will along with a deed which left property to his children. Folcher’s medical condition declined and he became physically incapacitated. He made two codicils to his will leaving everything to Tambascia but the codicils were kept by her. Tambascia also got Folcher to sign another deed transferring a property to her and she began to disallow Folcher’s family to visit him. There were numerous inconsistencies in the codicils and deeds. After Folcher died, his daughter commenced probate based upon Folcher’s original will litigation ensued over the subsequent documents Tambascia had.

The court found that there had been a confidential relationship between Tambascia and Folcher, and that Folcher was in a weakened and fragile state when he made the new deed and the two codicils. Finding that Tambascia’s testimony lacked credibility, the court concluded that Tambascia had fraudulently executed the new deed and the codicils.

The decision was affirmed on appeal. The trial court’s findings were sufficiently consistent with the evidence. Folcher was clearly reliant on Tambascia for companionship, care, and support. He had been recently discharged from the hospital and had mere days to live at the time he purportedly generated the two codicils and second deed. He was wheelchair-bound, could not bathe himself, had trouble getting in and out of bed, and Tambascia controlled his intake of pain-killers and other medications. The court found suspicious circumstances infected the deed, including that it was not prepared by Folcher’s attorney as was his practice and Folcher had been seated in a motor vehicle and the notary came outside to notarize the document while the witnesses watched through the bank window. The codicils did not have proper notarizations; and the witnesses denied having signed them.

Case Citation: In re Estate of Folcher, 2014 WL 2574494 (June 10, 2014)

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