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Florida Probate Blog

Category: Estate Litigation

Assessing Testamentary Capacity

Written by on Dec 10, 2008| Posted in: Estate Litigation

A Call For Help from the Probate Bar to the Psychology Clinicians The dramatic increase of cases challenging the validity of wills based on the deficient mental capacity of the person making the will has been measured, verified, and commented on by many legal observers. The reason for the increase in probate litigation is subject to debate; however, I have found in my discussions with other trust and estate practitioners that most will agree the relevant factors causing the increase include the rapidly growing number of older persons with medical and psychiatric problems affecting their mental and cognitive ability; the tremendous transfer of wealth taking place between the World War II and baby boomer generations and the change in the traditional nuclear family. See Daniel Marson and Laurie Zebley, The Other Side of the Retirement Years: Cognitive Decline, Dementia, and Loss of Financial Capacity, 41 Ret.Plan. 30 (2001); Harold T. […]

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Florida’s Slayer Statute

Written by on Nov 26, 2008| Posted in: Estate Litigation

Why The Slayer Rule May Prevent the Slayer’s Estate From Benefiting From the Slayer’s Act By Adrian P. Thomas Nullus Commodum capere potest de injuria sua propria (No man can take advantage of his own wrong) Some readers may be familiar with one of my cases that has been in the headlines recently.  When appropriate, the Florida Slayer Rule can be applied to prevent an injustice and to preclude a killer from benefiting from the crime. Florida, like many other states, has adopted the Uniform Probate Code’s version of the Slayer Rule. See Fla.Stat. §732.802. Unif. Probate Code 2-803 (amended 1993), 8 U.L.A. 211, 211-12. The relevant part of the statute reads:

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Prenuptial Agreements and Probate

Written by on Nov 19, 2008| Posted in: Estate Litigation

Fifth District Rules Plain Language Govern Interpretation of Ante-Nuptial Agreement What is a Prenuptial Agreement? A Premarital or prenuptial or antenuptial agreement means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. The agreement typically speaks to issues relating to property and can involve virtually any interest or rights in any present or future real or personal property rights. Prenuptial agreements can also allocate rights and risks to the parties’ income and earnings, both active and passive.

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Testamentary Capacity: Do We Need Legal Reform?

Written by on Nov 11, 2008| Posted in: Estate Litigation

Previous blog posts have discussed the fundamentals of will contests in Florida. These actions occur when a will is offered for probate (See Post dated October 28, 2008 What is the Definition of Probate) which is always after the testator has died. One of the most common grounds for a person seeking to invalidate a will offered for probate is that the will was executed at a time when the testator (the person signing the will) lacked testamentary capacity. The legal standard for testamentary capacity is that the testator knew the nature and extent of his or her property, the natural objects of his or her bounty (property) and the contents of his or her estate plan. See, In re Estate of Tolin, 622 So.2d 988, 990 (Fla. 1993). Since the person signing the will isn’t alive to testify or be examined in order to determine testamentary capacity, the court […]

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Amazing Grace: Religion and Undue Influence

Written by on Oct 17, 2008| Posted in: Estate Litigation

It is no secret that many priests, clergyman, and spiritual advisors, share a deep, committed and trusting relationship with their followers and church congregation. The degree and extent of this trust grows with time, and recent cases I have handled in Florida lead me to conclude that the elderly often share a very special relationship with their spiritual advisors and others who the elderly person views as in a position of religious authority or spiritual leadership. Because the nature of this relationship often equates with what the law defines as a confidential relationship, some legal commentators have recently suggested that the law creates a per se rule raising the presumption of undue influence when an eleventh hour will is executed and religious leaders are active in its procurement, or involved in the will’s preparation and are named as beneficiaries. As Professor Jeffrey G. Sherman recently stated: “The best solution to […]

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Quote

Written by on Oct 16, 2008| Posted in: Estate Litigation

“There are no instances where men are so easily imposed upon as at the time of their dying, under pretense of charity.” Lord Chancellor in Attorney-General v. Bains, Prec. Ch. 270, 272, 24 Eng.Rep. 131, 131 (1708).

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Do I Have a Case? The Presumption of Undue Influence?

Written by on Oct 14, 2008| Posted in: Estate Litigation

Do I Have a Case? (Part Four) As I have indicated in prior posts, there are certain categories of evidence that I look for in order to prove undue influence, which 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 Estate, 253 So. 2d 697 (Fla. 1971). In Florida, the legislature has created a presumption of undue influence.  What does this mean?

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Missing Last Will & Testament: Lost or Revoked?

Written by on Oct 10, 2008| Posted in: Estate Litigation

Lost Will: Evidence Has To Be Sufficient to Overcome Presumption that Will Was Revoked When It Cannot Be Located After Death. On October 1, 2008, The Florida Fourth District Court of Appeals reversed a Broward County Probate Court ruling in Balboni vs. LaRocque 33 Fla.L.Weekly D2314a ( 4th District. Case No. 4D07-3991. October 1, 2008) holding that the evidence presented was legally insufficient to rebut the presumption of intentional revocation.

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Do I Have a Case? What Evidence Points to the Conclusion of Undue Influence?

Written by on Oct 8, 2008| Posted in: Estate Litigation

Do I Have a Case?  (Part Three) As I have indicated in prior posts, 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 Estate, 253 So. 2d 697 (Fla. 1971).

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Stipulation of Last Will & Testament and Appointment of Personal Representative

Written by on Oct 7, 2008| Posted in: Estate Litigation

Ouch! Stinging Stipulations: Florida’s First District Court of Appeal reverses trial court’s appointment of personal representative of estate based on strict application of probate statute and the litigants’ own stipulation. As a probate litigation attorney, I frequently stipulate to a variety of things as a matter of professional courtesy and/or for judicial economy and efficiency. However, as the opinion released today by the First district Court of Appeal reminds us, stipulations have implications and consequences that are sometimes visible only to an experienced eye.

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