Jury Trials in Probate

 Our firm regularly demands jury trials in probate matters.  There are a variety of reasons for doing so, including the simple fact that it is a constitutional right of all citizens to preserve and guarantee a trial by jury in all proceedings.  Also important is the fact that jury trials are vital to maintaining the public’s confidence and trust in our judicial system.  The value of jury trials in probate has become even more critical with the dramatic decline in the number of jury trials in recent years.

One of the evolving and developing areas of the law that assists probate litigators in providing access to jury trials is the theory of liability founded in what is referred to as “tortious interference with an inheritance” or “intentional interference with an expectancy.”   Our firm regularly handles these cases on behalf of relatives who have been victimized by some unscrupulous person who has interfered with an elderly loved one’s traditional testamentary wishes.  The unscrupulous conduct takes many forms, but typically involves the changing of the title and ownership of assets using a power of attorney, assisting an elderly person with the preparation of a new will, or the changing of bank accounts so that the elderly person’s assets do not pass to the family upon death. 

These actions are for money damages and persons who make these claims are guaranteed a right to a jury trial under the state constitution.

Florida Probate:  Notice of Administration

The Notice of Administration is a formal document that notifies all interested parties of the death of the decedent, the filing of the last will and testament for probate, and that an objection to the validly of the will and the probate proceedings must be filed within a certain period of time or be forever barred.

The recipient of a Notice of Administration may have a variety of legal bases (e.g., Lack of Mental Capacity, Undue Influence, Duress, Intentional Interference with an Expectancy, and/or Improper Signing of the Will) to try to stop the administration of the estate or the challenge the validity of the Will.  If you receive a Notice of Administration informing you that you have a limited time-frame, the Notice provisions will override any deals, promises or assurances that if you don’t contest the will you will get your fair share.  So be wary of any promises made that things will be “evened out” in the estate or someone will “take care of it” – those verbal agreements are unenforceable.  In other words, once you are served with a Notice of Administration and the time period (usually 20 days) passes, any promises, representations or guarantees to settle any estate dispute or disagreement are worthless and unenforceable.

Often with estates, a conflict develops between beneficiaries and the Personal Representative that leads to litigation.  This litigation can be the result of a delay in administration of the estate, distribution of assets, or differences in personality.  Recently a client hired our law firm to seek to remove a Personal Representative who had incurred very substantial fees for travelling around the country to repeatedly check on the decedent’s assets, which was an expense the client felt was unjustified.

Florida Statutes list causes for which a Personal Representative may be removed.  One of these causes include “holding or acquiring conflicting or adverse interest against the estate that will or may interfere with the administration of the estate as a whole.”  However, a dispute between the beneficiaries of an estate by itself in insufficient grounds to refuse to appoint a personal representative if otherwise qualified.  That holding, however, came in a case where two sisters filed competing petitions for administration of their mother’s estate.  One of the sisters had been appointed Personal Representative by will; the two sisters had a very adversarial relationship.  The Appellate Court reversed the trial court’s appointment of a neutral third party, preferring to give the testator’s selection deference in the absence of exceptional circumstances.     

While the Court in most circumstances will appoint the Personal Representative selected in the last will and testament, the court does not make the protesting beneficiary wait until a detriment is suffered if he can make his showing prior to the appointment.  Ironically, my client did not object to the appointment of the Personal Representative, however he did not anticipate the Personal Representative being so wasteful of the estate assets.

If you are the beneficiary of an estate and object to the appointment of the named Personal Representative, or to the conduct of the Personal Representative after appointment, it is imperative to consult a Florida probate litigation attorney to ensure your interests are not potentially diminished or squandered.

Quite frequently, as an inheritance lawyer who handles lawsuits with last will and testaments and codicils, I am asked questions regarding Florida inheritance disputes and the procedures for proving a lost or destroyed will. 

To establish and probate a lost or destroyed will, the specific content of the will must be proved by the testimony of two disinterested witnesses or, if a correct copy is provided, it must be proved by one disinterested witness.  In one court case involving a Florida inheritance fight, a lawyer provided a copy of the missing will to the court and presented a disinterested witness who testified that it was a correct copy.  Even though there was conflicting testimony by the other witness (who stood to gain if the will was rejected) that the will was later revoked by the decedent, the Court still found the lost or destroyed will could be admitted to probate. 

These types of cases involve a lawyer’s command over the substantive provisions of the Florida Probate Code and an understanding of the rules regarding will and trust contests in Florida.

My probate practice regularly performs cleaning services for the messes caused by maladministration of estates by fiduciaries.  Unfortunately, with increasing frequency, estates and their beneficiaries are victimized not only by negligent fiduciaries, but by attorneys who steal from the estates.

For example, one attorney was recently charged with stealing more than $300,000 in guns, jewelry and art from a friend who died of cancer.   A beneficiary named in the will contacted police after receiving nothing from the estate.    Evidently, the lawyer was unsuccessful in attempting to be appointed personal representative of the estate.  Further, the lawyer was charged with forgery for allegedly signing the decedent’s name on a check two days after the man passed away.  Finally, the lawyer was charged with perjury for allegedly claiming to be executor of the estate when he re-registered several guns in his name.

Misconduct by Florida attorneys involved in handling wills and trusts is not uncommon.  All too often I am asked to investigate and ultimately prosecute will contests which involve attorneys playing an active role, not only in the procurement of the will, but in having themselves or their relatives named as beneficiaries under the will. The Florida Supreme Court has adopted a portion of the American Bar Association’s Model Rules of Professional Responsibility, and in particular, the prohibition against lawyers playing a role in the drafting and execution of a will or trust where they are named as a beneficiary.

Rule 4-1.8. Conflict of Interest; Prohibited and Other Transactions

(c) Gifts to Lawyer or Lawyer’s Family. A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this subdivision, related persons include a spouse, child, grandchild, parent, grandparent, or other relative with whom the lawyer or the client maintains a close, familial relationship.

This code provision was relied on in disciplinary proceedings against a lawyer in The Florida Bar vs. Anderson, 638 So.2d 29 (Fla. 1994). In October 1988, Anderson, a probate lawyer, undertook the representation of Mary Sisler. Between that time and Sisler’s death two years later, he prepared nine testamentary instruments, six of which named him or his wife as beneficiaries of Sisler’s estate. The Court found his conduct to be unprofessional even though Anderson did not intend that either he or his wife benefit from the bequests and even though he received no real benefit from any instrument he drafted for Sisler. The Court found, however, that Anderson was attempting, inartfully, to effectuate Sisler’s intent to shield the bequests from the creditors of the Palm Beach Festival, her intended beneficiary.

The Anderson decision and the Rule of Professional Responsibility upon which it is predicated, underscores the deep-rooted policy in Florida that a lawyer who drafts a will in which the attorney or a member of his family is a beneficiary raises the issue of undue influence that taints the entire will and may destroy the validity of other bequests as well. Florida law will not tolerate this conduct as it frustrates the intentions of a client who has entrusted the attorney with the responsibility of seeing that the estate is distributed according to the client’s wishes. Further, in the cases I have handled, I invariably find that the attorney’s credibility as a witness on testamentary capacity is impaired by the attorney’s personal interest in the outcome.

While most probate litigation involves challenging and defending wills and trusts, a recent case I handled dealt with the absence of an original will.  Florida probate law provides that when an original will that is known to have existed  cannot be located after the death of the testator there is a presumption that the testator destroyed the will with the intent to revoke it.  In other words, the law is presuming that a last will and testament is important enough to be kept in a safe place so it can be discovered after death.  However, in our firm’s case, the decedent was believed to have kept the original in his safe deposit box yet shortly after his death many potential intestate heirs had access to the safe.  An intestate heir is an heir who exists only when there is no last will and testament.  In our case, the decedent’s children from his first wife were seeking to inherit even though in the copy of his Last Will and Testament his estate was left entirely to his minor child. 

Although a presumption exists that the will was destroyed with the intent to revoke when the original last will cannot be located, a Florida probate lawyer can assist in trying to overcome that presumption.  To do so, the person who wants the copy of the will or the “lost” will to be honored and admitted into probate has the burden of introducing evidence to honor the copy as the original.  Evidence which is relevant includes a copy of the lost or destroyed will and testimony of the witnesses to the signing of the will.  Florida Statute 733.207 provides that:  Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.

Certainly my client, as a named beneficiary in the copy of the will, was an interested person.  Additionally, the children from the first wife who were the intestate heirs of the Decent were also interested persons.  Fortunately, through investigation and discovery, we were able to determine the name of the attorney who created the last will and testament, and at his deposition he produced a copy of the decedent’s will in addition to some notes he took regarding the decedent’s intent.  As his contact with the decedent was limited to drafting a will many years prior, he was able to act as the sole disinterested witness in rebutting the presumption that the decedent intended to revoke his Last Will and Testament just because the original was not located.

The probate court was most interested in the testimony of the drafting attorney as a disinterested person.  This attorney was being called to testify as to the terms of the decedent’s “lost” will.  The lawyer’s testimony had nothing to do with the typical challenge to the decedent’s will for issues of lack of testamentary capacity or fraud.  When the lawyer testified, there was no issue of bias or credibility about what the decedent wanted and that the copy of the will expressed the desires of the decedent.  On the other hand, the Decedent’s children who had access to his safe right after death stood to gain financially if the Court found the Decedent intended to revoke his will because the original could not be found.  Fortunately the evidence we were able to obtain was sufficient to overcome the statutory presumption that the decedent revoked his will because the original was not located.

Let’s say your father passed away with $200,000 in his estate and you are the only heir.  If your father had owed money on the date of his death, the estate would be obligated to satisfy that creditor prior to you obtaining your inheritance.  Florida law provides that a devise (distribution) owed to a beneficiary is subject to charges for debts, expenses, and taxes.  In our example, if the creditor claim was for $100,000, it would be paid first, and you would then inherit the $100,000 remaining in the estate. 

However, what if your father only had $90,000 on the date of his death, yet still had the $100,000 creditor?  Unfortunately, your father’s estate would be insolvent and your inheritance may be completely wiped out. 

Now suppose that the person who owes the estate is a child who convinced his father to make a quick change to his last will and testament specifically forgiving the debt that is owed by the son to the decedent.  What if the only funds in an estate available for distribution to the other children are to come from the child who owe money to the estate but whose obligation is now forgiven?

Prior to April of this year, no Florida court had addressed the issue of whether the release and forgiveness of an obligation (debt) in a will operates to defeat the payment of obligations and expenses of an estate.  In other words, are debt forgiveness clauses in wills enforceable?  The court in Lauristen v. Wallace—So.3d.—2011, WL 1195873 (Fla. 5^th DCA Apr 01, 2011), addressed the issue when the will of a father had a provision that forgave the debt of his son.  However, the only estate asset was this debt owed to the decedent; the estate was otherwise insolvent and could not pay for other debts and expenses.  The court held that a decedent can release a debt owed to the decedent through a will only to the extent that the decedent’s estate is solvent to pay all debts and administrative costs of the estate.  Therefore, such clauses may not be enforceable when the estate lacks the funds to pay its debts and expenses but may be enforceable if debts and expenses are paid but still leaving nothing to disburse to the beneficiaries. 

 You must always be wary of the solvency of the estate when making decisions on strategy and how expenses and distributions are to be made from the estate.  Florida courts have made yet another distinction between solvent and insolvent estates and all parties, especially the personal representative, must be aware of these distinctions.

CAN A PERSONAL REPRESENTATIVE OF AN ESTATE BE REMOVED?

Pursuant to Florida Statute 733.302, any person who is over the age of 18 years old, and is a resident of Florida at the time of death of the person whose estate is to be administered is qualified to act as personal representative in Florida.

You may receive a copy of the Notice of Administration of an estate, which will indicate who is the acting Personal Representative of that estate.  Pursuant to Florida Statue 733.212, a copy of the notice of administration should be served on the following persons who are known to the personal representative:  the decedent’s surviving spouse, beneficiaries, the trustee of any trust and each qualified beneficiary of the trust, persons who may be entitled to exempt property, and interested persons.  Florida Statute 731.201(23) defines an interested person as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.  Under Florida Statute 731.201(2), a beneficiary means an heir at law in an intestate estate (estate without a Will) and devisee in a testate estate (estate with a Will).

In the event you receive a Notice of Administration, and believe that the person who was named as Personal Representative is not qualified to hold that position, it is possible to have a personal representative removed and a successor personal representative appointed. 

Florida Statute 733.504 states that a personal representative may be removed and letters revoked for any of the following causes, and the removal shall be in addition to any penalties prescribed by law:

(1) Adjudication that the personal representative is incapacitated.

(2) Physical or mental incapacity rendering the personal representative incapable of the discharge of his or her duties.

(3) Failure to comply with any order of the court, unless the order has been superseded on appeal.

(4) Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required.

(5) Wasting or maladministration of the estate.

(6) Failure to give bond or security for any purpose.

(7) Conviction of a felony.

(8) Insolvency of, or the appointment of a receiver or liquidator for, any corporate personal representative.

(9) Holding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole. This cause of removal shall not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in this code.

(10) Revocation of the probate of the decedent’s will that authorized or designated the appointment of the personal representative.

(11) Removal of domicile from Florida, if domicile was a requirement of initial appointment.

(12) The personal representative would not now be entitled to appointment.

Also, it is important to note that pursuant to Florida Statute 733.303, a person is not qualified to act as a personal representative if the person:

(a)  Has been convicted of a felony;

(b)  Is mentally or physically unable to perform the duties; and

(c)  Is under the age of 18 years.

The personal representative has specific fiduciary duties and obligations to the beneficiaries of an estate.  If a beneficiary believes that there has been mismanagement, self-dealing, divided loyalties, conflict of interest, or a breach of fiduciary duty by the personal representative of an estate, it is imperative that the beneficiary retain skilled and competent counsel to discuss their rights as the beneficiary of an estate to ensure that the beneficiary receives the appropriate distributions and to ensure that the personal representative is performing all of their fiduciary duties according to the Florida Statutes.  If the personal representative has breached their fiduciary duties, then competent counsel could have the personal representative removed, and request that the Court appoint a successor personal representative.

What is Probate Litigation?

In Florida, probate litigation is one of the most hotly-contested areas of the law; here, surviving family members use the judicial system to correct an array of injustices. Probate is the legal process by which a person’s debts are paid and assets owned by the decedent are distributed upon death. Probate litigation frequently arises in the context of a Will contest.  When a decedent has created a Last Will and Testament and it is offered for probate, Florida law grants creditors and heirs various rights, privileges and limitations that must be strictly followed.

Usually, Florida probate litigation is first considered by a client when they receive a Notice of Administration alerting them that an objection to the probate proceedings must be commenced within a certain period of time or be forever barred. Probate litigation is the broad concept of challenging the contents of the Last Will and Testament; a provision of the Last Will and Testament; the appointment of an executor (Florida law refers to an Executor or Executrix as a Personal Representative); or the entire document itself. The facts of each dispute will define the exact cause of action (e.g., Lack of Mental Capacity, Undue Influence, Duress, Intentional Interference with an Expectancy, and/or Improper Signing of the Will) that needs to be prosecuted or defended. However, one should never rely on a promise to “even out” the estate or “take care of it” soon if served with a Notice of Administration. Once, the very limited time period (usually 20 days) passes, any promises, representations or guaranteed to settle any estate dispute or disagreement are worthless and unenforceable unless an attorney has entered into an official settlement agreement.

Undue influence:  New tricks for an old dog?

As the seminal case of In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), turns 40 years old, a review of the holding is warranted to see if whether it is withstanding the test of time.  To prove undue influence in Florida, a will or trust contestant must show that the decedent was unduly influenced by 1) a substantial beneficiary under the contested document 2) and that beneficiary had a confidential relationship with the decedent and 3) actively procured the will or trust.  Often in undue influence actions, the first and second items are stipulated to, as it is appropriate that a substantial beneficiary may have a confidential relationship with a decedent. 

While not exhaustive, the Florida Supreme Court provided seven criteria in In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971) in determining undue influence:

1) presence of the beneficiary at the execution of the will/trust;

2) presence of that beneficiary on occasions when the testator expressed a desire to make the will/trust;

3) recommendation by the beneficiary of an attorney to draw the will/trust;

4) knowledge by the beneficiary of the contents of the will/trust prior to its execution;

5) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;

6) securing of witnesses to the will by the beneficiary; and

7) physical possession of the will by the beneficiary after its execution.

Although, active procurement is a necessary element in proving undue influence one needs to look beyond the Carpenter factors because Carpenter was decided 40 years ago and over the last 40 years people have come up with creative and subtle ways of perfecting the undue influence scheme.  

For example, if you just stuck to Carpenter in evaluating a potential undue influence case in Florida, if the alleged wrongdoer was not present for the execution of the will/trust nor took possession after its execution, an exclusive reliance upon the Carpenter factors may lead one to the incorrect conclusion that undue influence is not provable.  What if a sibling told lies to their surviving parents about his sister’s behavior, over the telephone, then visited for several days –is that some evidence of undue influence?   If documents were then amended once that sibling returned home, but prior to the death of the parents, would it be possible to use that conduct to help prove undue influence? 

If a wrongdoer isolates someone that can be an important factor regarding the issue of undue influence.  Although Carpenter does not address isolation and undue influence, newer cases do.  In the days Carpenter was decided, isolating someone required physical presence.  In today’s technologically advanced society, isolation may be directed from another state.  Ask yourself the following  questions: Was the parent given access to the outside world?  Who selected the parent’s caregiver?  Did the wrongdoer disparage family members?  What do the telephone records and email demonstrate? 

The point is if you are faced with a scenario in Florida where common sense tells you someone has committed undue influence, the fact that the conduct of the undue influencer doesn’t fit neatly into Carpenter doesn’t mean undue influence doesn’t exist.  One needs to investigate additional areas of conduct beyond the Carpenter factors because much of the traditional conduct of taking parents to the lawyer, selecting witnesses, etc., is being replaced by other nefarious conduct that is just as troubling.