What does it mean to have lack of mental capacity or lack of testamentary capacity?

Lack of Mental Capacity or Lack of Testamentary Capacity claims are based on the testator’s lack of mental capacity and are the most common types of testamentary challenges. Testamentary capacity typically requires that a testator has sufficient mental acuity to understand (a) the amount and nature of his or her property, (b) the family members and loved ones who would ordinarily receive such property by Last Will and Testament, and (c) how his or her Last Will and Testament disposes of such property. Simply because an individual has a form of mental illness or disease does not mean that he or she automatically lacks the requisite mental capacity to make a Last Will and Testament. Competency to execute a Last Will and Testament generally means that the Testator understood the nature and extent of his assets and knew the natural objects of his bounty (his family). While it may seem that the Testator (the person who signed the Last Will and Testament) was incompetent or that the Last Will and Testament was the product of fraud, undue influence or overreaching.  Lack of Mental Capacity or incompetence is typically proven by medical records, irrational conduct of the Decedent, and the testimony of those who observed the Decedent at the time the Last Will and Testament was executed.

What is “undue influence?”

Undue Influence claims challenge whether the testator made the Last Will and Testament freely and without being coerced by someone. An undue influence lawsuit relates to whether the decedent made his or her Last Will and Testament without being coerced by another person or persons. For example, a family member, friend, long-time employee, or acquaintance might pressure a frail, elderly person to leave most or all of his or her assets to that person while excluding children, relatives and others who should receive the inheritance. Undue influence occurs when a person is compelled to perform an act (signing of a Last Will and Testament) as a result of improper pressure exerted upon him or her.

Florida enacts legislation allowing challenges to “deathbed marriages.” 

It used to be that you could marry someone only moments before death and be vested with all the same rights and benefits as a spouse of 50 years.  Florida wised up to this type of predatory behavior and enacted Florida Statute §732.805, which became effective on October 1, 2010. 

The statute allows an interested party to challenge a surviving spouse’s rights by alleging that the marriage was procured by fraud, duress or undue influence.  The burden is on the challenger to establish, by a preponderance of the evidence, that the marriage was procured by fraud, duress, or undue influence.  The cause of action cannot be brought until the death of the person believed to have been coerced into marriage and is only available for four (4) years from date of death.  It will be interesting to revisit this blog after causes of action have been litigated under this statute.

Florida Statute Section 732.805

Spousal rights procured by fraud, duress, or undue influence.

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(1) A surviving spouse who is found to have procured a marriage to the decedent by fraud, duress, or undue influence is not entitled to any of the following rights or benefits that inure solely by virtue of the marriage or the person’s status as surviving spouse of the decedent unless the decedent and the surviving spouse voluntarily cohabited as husband and wife with full knowledge of the facts constituting the fraud, duress, or undue influence or both spouses otherwise subsequently ratified the marriage:

(a) Any rights or benefits under the Florida Probate Code, including, but not limited to, entitlement to elective share or family allowance; preference in appointment as personal representative; inheritance by intestacy, homestead, or exempt property; or inheritance as a pretermitted spouse.

(b) Any rights or benefits under a bond, life insurance policy, or other contractual arrangement if the decedent is the principal obligee or the person upon whose life the policy is issued, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the bond, life insurance policy, or other contractual arrangement.

(c) Any rights or benefits under a will, trust, or power of appointment, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the will, trust, or power of appointment.

(d) Any immunity from the presumption of undue influence that a surviving spouse may have under state law.

(2) Any of the rights or benefits listed in paragraphs (1)(a)-(c) which would have passed solely by virtue of the marriage to a surviving spouse who is found to have procured the marriage by fraud, duress, or undue influence shall pass as if the spouse had predeceased the decedent.

(3) A challenge to a surviving spouse’s rights under this section may be maintained as a defense, objection, or cause of action by any interested person after the death of the decedent in any proceeding in which the fact of marriage may be directly or indirectly material.

(4) The contestant has the burden of establishing, by a preponderance of the evidence, that the marriage was procured by fraud, duress, or undue influence. If ratification of the marriage is raised as a defense, the surviving spouse has the burden of establishing, by a preponderance of the evidence, the subsequent ratification by both spouses.

(5) In all actions brought under this section, the court shall award taxable costs as in chancery actions, including attorney’s fees. When awarding taxable costs and attorney’s fees, the court may direct payment from a party’s interest, if any, in the estate, or enter a judgment that may be satisfied from other property of the party, or both.

(6) An insurance company, financial institution, or other obligor making payment according to the terms of its policy or obligation is not liable by reason of this section unless, before payment, it received written notice of a claim pursuant to this section.

(a) The notice required by this subsection must be in writing and must be accomplished in a manner reasonably suitable under the circumstances and likely to result in receipt of the notice. Permissible methods of notice include first-class mail, personal delivery, delivery to the person’s last known place of residence or place of business, or a properly directed facsimile or other electronic message.

(b) To be effective, notice to a financial institution or insurance company must contain the name, address, and the taxpayer identification number, or the account or policy number, of the principal obligee or person whose life is insured and shall be directed to an officer or a manager of the financial institution or insurance company in this state. If the financial institution or insurance company has no offices in this state, the notice shall be directed to the principal office of the financial institution or insurance company.

(c) Notice shall be effective when given, except that notice to a financial institution or insurance company is not effective until 5 business days after being given.

(7) The rights and remedies granted in this section are in addition to any other rights or remedies a person may have at law or equity.

(8) Unless sooner barred by adjudication, estoppel, or a provision of the Florida Probate Code or Florida Probate Rules, an interested person is barred from bringing an action under this section unless the action is commenced within 4 years after the decedent’s date of death. A cause of action under this section accrues on the decedent’s date of death.

Are step-children considered “lineal descendants” of the decedent?

A Florida appellate court recently held that the term “lineal descendants” does NOT include stepchildren.  Timmons v. Ingrahm, 36 So.3d 861 (Fla.Dist.Ct.App.2010).

In the Timmons case, the decedent’s Will defined the term “children” to include the decedent’s adopted children and the children of his spouse, whom he had never adopted.  The Will went on to create two trusts – a marital trust and a family trust.  The surviving spouse had the right to withdraw principal from the marital trust (subject to some limitations) during her lifetime and upon her death all of the trust property was to be added to the family trust and distributed to the decedent’s children (as defined above).  Unfortunately, the decedent also gave his spouse a limited power of appointment over the family trust allowing her to appoint the trust property to the decedent’s “living lineal descendants.”  Naturally, she appointed it all to her children and not surprisingly the decedent’s children had a problem with that decision! 

There are probably two morals to this story.  The first moral is for drafting attorneys: give careful consideration to the language used in an instrument.  The definition clause will not necessarily be controlling.  The second moral is for the testator:  unless you are married to the one and only love of your life and all children are the product of that union, then don’t give a power of appointment.  Step relationships frequently fall apart after the death of the biological parent.

What is probate litigation? 

The word probate is an odd one, coming from the Latin word “probatus” which means “to prove.”  Originally, probate was the process to prove a Last Will and Testament of the decedent.  However, probate courts have expanded their jurisdiction to include guardianship and trust law, too.  So “probate litigation” encompasses guardianship, probate, and trust disputes

My firm has handled hundreds of probate litigation cases over the past ten years.  With that experience, we have learned that in a probate litigation case the facts are always the same in a general sense, but have infinite variety as to the particulars. There is always an elderly person, usually alone, and a predatory relative, friend, or caretaker who takes advantage of the loneliness and dependency of old age.

Probate litigation (remember that means estate, guardianship, and trust litigation) is a rapidly-developing area of the law in Florida. The large elderly population has created a hotbed for abuse and subsequent litigation. Because probate, guardianship, and trust work generally do not involve litigation, most lawyers who practice in those areas  are reluctant – and wisely so — to litigate an issue themselves. Litigation is full of pitfalls that make it a hazard for attorneys who do not concentrate their practices.  

Here are some of the “red flags” that indicate you may have a probate litigation issue:

• An elderly parent comes in with one of his children to prepare new estate planning documents that change the beneficial interests of all of his children;
• A child with substance abuse issues decides to file a Petition to Determine Incapacity against an elderly parent even though the parent has complete estate planning documents that should eliminate the need for guardianship;
• A decedent who was dying of cancer and on heavy medication signs a new will or a deed near the end of his or her life;
• A child contacts you to advise you that she just found out a parent died a few months ago, the estate has been administered, and she never received any disclosure;
• A client with estate planning documents dies and the estate has numerous joint bank accounts with only one of the decedent’s children or with a friend or caretaker;
• A widow or a widower marries near the end of life and, notwithstanding a premarital agreement, creates joint accounts with the new spouse thereby cutting out the children the premarital agreement was designed to protect.

CONVICTED KILLER TO COLLECT A FORTUNE FROM HIS VICTIM

An interesting case out of New York is making headlines.  It involves a young man, heroin addict who admitted to killing his mother-in-law after she caught him trying to steal jewelry from her Long Island home.  He subsequently entered a plea agreement for 25 years in jail, avoiding life in prison.  Prior to the victim’s murder, she had prepared a Will bequeathing all of her estate to her only daughter.  The daughter, married to the murderer, was never charged in the crime.  After the man was arrested for the murder in November 2009, he remained in jail during which time his wife, the victim’s daughter, died in February 2010, leaving everything in her Estate to her jailed husband.  The victim’s family is, needless to say, outraged and attempting to set aside the plea bargain made with the murderer unless he agrees to give up his victim’s remaining legacy.  See link to New York Post article dated January 3, 2011, “Murderer To Inherit Fortune – From Victim” by Kieran Crowley.

As previously discussed on this blog, Florida’s Slayer statute §732.802, prohibits a surviving person who unlawfully and intentionally kills or participates in procuring the death of a decedent from receiving any benefits under the decedent’s Will or through intestate succession, treating the decedent’s estate as if the killer had predeceased the decedent.  However, how would Florida’s Slayer statute apply under the circumstances as occurred in this recent New York case?  There does not appear to be a section under Florida’s Slayer statute which applies to this set of facts.  Certainly one could construe Florida Statute §732.802 as a blanket denial of any financial benefit to the killer, resulting from the death of the victim, whether directly and/or through any indirect means, including through a third party not involved in the murder such as the case in New York.

What is also an interesting issue about the case in New York is the article above suggest that the victim’s family appears to be seeking monetary gain through the potential threat of further criminal sanctions which may be construed as extortion and criminal in and of itself.

Q.  Does a child have a right of inheritance from a father who never knew the child existed?  The rub is the child’s mother gave the child up for adoption without the father’s knowledge.  The father’s name is not on the original birth certificate but could be easily verified.

 Historically, if a child was illegitimate, most jurisdictions required only the consent of the child’s natural mother to the adoption of the child.  The right to grant or withhold such consent was not extended to the fathers of illegitimate offspring, since they were not considered to have sufficient interest in the benefits and obligations of raising a child to determine whether the child should be released for adoption.

In 1979, this trend was reversed in Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979).  The key issue was whether the consent of an unwed biological father need be obtained before an adoption could be finalized.  In Caban, a mother of illegitimate children and her husband filed a petition for adoption.  The children’s natural father filed a cross-petition to adopt.  The New York Surrogate’s Court granted the mother’s petition, and the natural father appealed.  The decision was affirmed by the Supreme Court, Appellate Division, and subsequently affirmed by the New York Court of Appeals.  On appeal, the United States Supreme Court ruled that a law depriving all unwed fathers of the right to decide against adoption, whether or not they actually took care of the children in question, was unconstitutional and a form of Sex Discrimination. 

Consistent with the Caban case, the State of Florida requires the consent of all unwed fathers of minor children prior to the termination of parental rights pending adoption.  Fla. Stat. § 63.062(1)(b)(5) (2008); La Follette v. Van Weelden, 309 So. 2d 197 (Fla. 1^st DCA 1975).

Florida Statutes § 63.062(1)(b)(5) (2008) reads in pertinent part as follows:

(1)  Unless supported by one or more of the grounds enumerated under s. 63.089(3), a petition to terminate parental rights pending adoption may be granted only if written consent has been executed as provided in s. 63.082 after the birth of the minor or notice has been served under s. 63.088 to:

 (b)  The father of the minor, if:

 5.  In the case of an unmarried biological father, he has acknowledged in writing, signed in the presence of a competent witness, that he is the father of the minor, has filed such acknowledgment with the Office of Vital Statistics of the Department of Health within the required time frames , and has complied with the requirements of subsection (2).

 The effect of the subsequent adoption is that, for the purpose of intestate succession, the adopted child is no longer a descendant of his or her natural parents.  Fla. Stat. § 732.108(1) (2008). 

In Florida, however, the fraudulent procurement of the father’s consent to adoption (i.e., by failing to inform him of the child’s birth) is grounds for setting aside the adoption; thus restoring the adopted child’s intestate inheritance rights.  Lambert v. Taylor, 8 So. 2d 393, 394 (Fla. 1942); Peregood v. Cosmides, 663 So. 2d 665, 669 (Fla. 5^th DCA 1995). 

Furthermore, Florida Courts must give full faith and credit to a foreign adoption, unless the decree from the other state is repugnant to the laws or policies of this State.  Mott v. First Nat’l Bank of St. Petersburg, 124 So. 36, 37 (Fla. 1929); Kupec v. Cooper, 593 So. 2d 1176, 1178 (Fla. 5^th DCA 1992); Tsilidis v. Pedakis, 132 So. 2d 9, 11-12 (Fla. 1^st DCA 1961).  If another state’s judgment or decree terminating the rights of the father was issued pursuant to due process of law, and in compliance with that state’s law, and that the foreign state’s law is similar to the law of Florida, then Florida will give it full faith and credit.  Kupec, 593 So. 2d at 1178.  However, Florida need not recognize an adoption that was obtained in a manner that is repugnant to the laws or policies of Florida.  Id.

The battle over a Will can be more like a battle of wills.

“It’s the principle of the matter”

We hear these words consistently from our clients over phone or in the office… “It is not the money; it is the principle of the matter.”  Litigation over an estate, Will, trust or inheritence can be emotionally traumatic for clients, especially when the dispute is between parties who are family members.  Although the majority of our clients want to resolve their issues quickly and inexpensively, many clients are willing to use the judicial process to vindicate what they believe were wrongs suffered at the hands of a family member.  This path is frequently expensive and may cost more than any eventual recovery; however, many litigants are willing to stand on principle – even when a cost-benefit analysis does not make sense financially - to achieve a measure of satisfaction and closure through the judicial process.    (more…)

My brother is refusing  to give an accounting of the estate assets – Why?

A beneficiary of an estate has the right to an accounting of estate assets.  Once an accounting has been requested,  Florida probate law requires that it be produced within a reasonable amount of time.  In fact, the law requires a Personal Representative to file an accounting  with the court and to serve it on all affected beneficiaires (unless it has been waived) when the administration of the estate is complete.  The accounting must be signed by the person preparing it to hold that person responsible for the information contained in the accounting.  Most importantly, a beneficiary has the right to inspect the documents (for example, bank records, receipts and checks) to confirm that the accounting being produced is supported by the evidence.  A probate litigation lawyer should never accept an accounting for her client without the supporting documentation to ensure accuracy.  Be very wary of a fiduciary who refuses to produce an accounting because he probably has something to hide.

In Florida the surviving spouse has certain basic rights regardless of whether the deceased spouse has executed a valid Will or whether the surviving spouse was excluded from the Last Will and Testament.  Something called an elective share may be taken when surviving spouses are dissatisfied with the share of the estate they are to receive under testate and intestate succession.  Under the elective share concept, the surviving spouse is entitled to take 30% of what constitutes the decedent’s “augmented estate,” with probate and certain non-probate transfers being included.  The elective share is considered to be a substitute for dower and curtesy which was the historic basic rights given to a spouse after death of a husband or wife.  Think of the elective share as the surviving spouse’s right to a forced share in the decedent’s entire estate.  It prevents the decedent from entirely disinheriting the other spouse.  The elective share is in addition to homestead, exempt property and the family allowance with all other property rights a spouse receives on top of the elective share.  See Fla.Stat. §732.208.  The elective share provisions found in the Florida Probate Code, resulting from 1999 and 2001 Legislation, consists of Fla.Stat. §§732.201 through 732.2155. (more…)