Do I have a Case? (Part One)

If I had a nickel for each time a potential client or a referring probate administration attorney asked me this question, I’d retire today. The answer, of course, depends upon a careful examination of each individual case, and frequently the successful resolution of a probate dispute hinges upon the discovery of evidence (often medical and financial records) produced after a lawsuit has commenced.

Generally, there are certain categories of evidence that I look for in order to prove undue influence and then the case develops and follows the facts that are discovered. Undue influence has been defined by Florida courts as conduct amounting to overpersuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that the free agency and will power of the testator is destroyed. In re Carpenter’s Case, 253 So. 2d 697 (Fla. 1971). (more…)

Proving Incapacity: How Can You Determine Whether Dementia Played a Role in the Will Change? Tested Methods for a Challenging Evidentiary Task

In an earlier blog, I reminded readers that Florida is home to the nation’s largest geriatric population, many of whom are vulnerable to exploitation due to the infirmities of age and diminished mental capacity. A recent study discovered that the prevalence of dementia is estimated to double every five years in the elderly, growing from a disorder that affects 1 percent of persons 60 years old to a condition afflicting approximately 30 percent to 45 percent of persons 85 years old. (more…)

Is Florida legislation needed to address the presence of undue influence in trust revocation situations involving vulnerable elderly adults?

It is no secret that Florida is home to a geriatric population, many of whom are vulnerable to exploitation due to the infirmities of age and diminished mental capacity.  A recent study discovered that the prevalence of dementia is estimated to double every five years in the elderly, growing from a disorder that affects 1 percent of persons 60 years old to a condition afflicting approximately 30 percent to 45 percent of persons 85 years old.[1]

Many Floridians who have revocable trusts as an aspect of their estate planning are susceptible to what I consider to be an area of concern as to the existing status of the law as it stands in Florida.  Specifically, I am concerned that existing decisional case law in Florida allows for persons, whose capacity to make adequately-considered decisions in connection with their revocable trusts is diminished because of dementia, to remain vulnerable to undue influence. (more…)

Is it Time for Trusts to Take a Trip to the Repair Shop? Florida Court Gives Liberal Application of New Trust Code Provision Allowing for Repair of Mistakes in Trust Language Upon Application of an Interested Person.

The Florida Legislature’s adoption of the Uniform Trust Code fostered a welcome change to the way mistakes in trust documents are now treated. Formerly, beneficiaries were shackled by mistakes made by their relative in drafting provisions of their trust documents, sometimes neglecting gift or similar provisions when there was clear evidence that the relative intended to give someone an inheritance. (more…)

Tale of the Tape: Should a Lawyer Videotape the Execution of a Will?

I am frequently asked by probate administration attorneys whether they should make a video recording of a will execution in cases where they anticipate there will be probate litigation involving a will contest after the testator’s death. While video recording generally is considered relevant evidence in a trial involving allegations of undue influence and testamentary capacity, I have experience mixed results from the use of these recordings. This is due primarily to the elementary psychological precept that different people perceive the same stimuli and arrive at quite different conclusions. Nevertheless, there are a few fundamental rules to keep in mind when a probate administration attorney decides or is asked to video record a will execution for potential use in a later probate litigation trial. (more…)

Can a Trust Exist Where the Beneficiaries’ Interest Are Contingent on Surviving the Settlor or Other Events?

This interesting question was raised not only discussions leading up to the drafting of the Third Restatement of Trusts, but also in recent case law. For example, in Hoggan v. Hoggan, 169 P.3d 750, 588 Utah Adv. Rep. 24, 2007 UT 78 (2007) the Court was presented with the following:

The Eleventh Hour Amendment
Shortly before she passed away, Leona Hoggan amended a trust that she had created some fifteen years earlier. The amendment provided that, upon Loena’s death, her son John would be forgiven a loan Leona had made to him, rather than receiving a one-third interest in the trust property. (more…)

Should a child have protected rights to property and inheritance where the child was created as an embryo through in vitro fertilization during his parents’ marriage, but implanted into his mother’s womb after the death of his father?

FINLEY vs. ASTRUE
A recent case illustrates the difficult policy and legal considerations that factor into resolving these challenging cases: Amy and Michael Finley were married in 1990 and during the course of their marriage pursued fertility treatments and ultimately participated in an in vitro fertilization and embryo transfer program. (more…)

Wait! Don’t Throw that Away!

Do A Decedent’s Next Of Kin Have A Protected Right In The Decedent’s Blood Samples, Tissue, Organs And Other Body Parts That Have Been Removed And Retained By A Coroner For Forensic Examination And Testing?

I recently encountered a dispute in the context of a paternity proceeding in a probate estate as to who has the rights to a decedent’s blood samples that were drawn during an autopsy. The answer was critical to the establishment of my client as the decedent’s biological child and important in assessing all the parties’ ultimate rights to the Decedent’s Homestead Property.

The Florida Supreme Court has never directly dealt with the issue, which implicates not just the parties involved in the dispute (in my case, the Decedent’s sister, was the Personal Representative and my client was the biological son attempting to establish paternity) but also involves medical examiners, law enforcement, State Attorneys, pathologists and surgeons, and funeral homes. (more…)

Can a Parent Inherit from a Child Whom the Parent Did Not Support?

An infant was born severely handicapped as a result of medical malpractice by doctors at birth. The doctors were sued and a judgment was entered against them for almost three million dollars, the bulk of which was placed in a trust for the child’s benefit. The child died on September 2, 2005. (more…)

What is the legal duty of a fiduciary?

The answer from Justice Cardozo is still quoted today:  “A trustee is held to something stricter than the morals of the market place.  Not honesty alone, but the punctillo of an honor most sensitive, is then the standard of behavior.”

Meinhardt v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546 (1928).