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.

A Look at the Requirements of Will Revocation by Physical Act

Flush It Down the Toilet!

The Law

Florida is one of several states that have a strict requirement for revocation of a person’s Will. Florida law allows a person to revoke their will by either written instructions, or by physical act. For revocation by writing, the document must be a subsequent Will, codicil, or other writing executed with the same formalities required for the original Will (signed at the end and witnessed.) See Fla.Stat. §732.505.

Florida Statutes section 732.506 sets forth the requirements for revocation by act:

“A will or codicil is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose of revocation.” Read the rest of this entry

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? Read the rest of this entry

Do I have a Case? (Part Two)

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 over-persuasion, 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). Read the rest of this entry

WILL CONTEST FLORIDA

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.

It Just Doesn’t Make Any Sense

Many times I am asked to represent persons who don’t live in Florida and don’t see their elderly Florida relatives on a daily basis. During their visits to Florida they notice a change in their elderly relative’s behavior, but don’t take any drastic measures because they don’t fear that their relative is in danger and because they are only visiting and don’t want to upset their elderly relative. After death, these persons then discover that their relative wrote a new will at the eleventh hour of their life with provisions that don’t make any sense. To the now disinherited family member who is looking for answers, I often ask whether their elderly relative could have been suffering from diminished capacity to an extent that the should be invalidated.

The Doctor Is In

It is at this point that the inquiry delves into a myriad of factors. One of the first things I look at is the medication that the elderly person was taking. Many doctors believe that some of the many forms of dementia are treatable and reversible and will make efforts to treat the diseases through various prescription drugs, for example: Aricept. Also, elderly persons frequently experience battles with debilitating depression which physicians will attempt to combat with prescription drugs. Often, there will be a change in dose or other medical evidence indicating whether or not the elderly person responded favorably to the medication or whether their condition continued to deteriorate.

Capacity

In Florida, testamentary capacity is the ability of a person to make a valid will. It requires that the person making the will understand the nature and extent of the property they own at the time the will is executed; the nature and effect of signing the will and an understanding of the planned disposition in the will. Finally, and most importantly, the person making the will must have knowledge of their natural relatives and the nature of their relationship with the person making the will.

Partial Incapacity Florida is unique in that its state decisional case law recognizes that a person might not lack capacity all the time for all purposes. What has developed in Florida is a principle of law called “partial insanity.” Under this principle, partial insanity may invalidate a will. See, In re Supplee’s Estate, 247 So. 2d 488 (Fla. 2d DCA).

Evidence I have had success where family members kept notes that were contemporaneous with their observations of their elderly relative, or where there is some evidence other than their own testimony pointing to the conclusion that their relative was suffering from progressive forms of dementia that affected their judgment at the time they executed the will. This evidence can take many forms, for example, I had one case where the evidence included my client’s father who went out driving a golf cart in his underwear. This one episode, coupled with other evidence that he had forgotten that one of his pieces of real estate had already been sold years ago, led to the conclusion that he did not understand the nature of his property at the time he executed the will.

FLORIDA UNIFORM TRUST CODE

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.

The Reformation

Now, the new trust code under section 736.0415, an interested person may ask the Court through probate litigation, to reform the terms of a trust to conform to the settlor’s intentions if it is proved by clear and convincing evidence that both the accomplishment of the settlor’s intent and the terms of the trust were affected by a mistake. Under this new section of the Trust Code, reformation is available for both mistakes of law and of fact, whether or not the terms of the trust are ambiguous.

The Enlightenment

After the Florida Real Property, Probate & Trust Law Section of The Florida Bar to file a brief was asked by the Third District Court of Appeals to file an amicus brief on the issue, the court issued its opinion in Reid v. Temple Judea, — So.2d —-, 2008 WL 2356814, (Fla.App. 3 Dist., 2008) addressing the issue of trust reformation. The opinion is instructive guidance for those contemplating trust litigation in order to effectuate necessary changes to a trust in order to achieve the settlor’s true intent.

In Action

In this case, Edgar Sonder executed a trust naming his nurse, Ceclia Reed, as successor trustee. The trust was funded by assets “pouring over” from Sonder’s estate, and provided for a number of gifts following Sonder’s death. Specifically, it provided for gifts totaling $31,000 to ten charities. Another section of the trust provided that after the gifts to the ten charities were satisfied, $125,000 was to be paid to the Hebrew Union College Jewish Institute of Religion. A final provision of the trust provided that after giving effect to the first two categories of gifts listed above, it provided for a number of specific gifts that were to be made to enumerated individuals including a gift of $25,000 and the apartment in which Sonder then resided to his nurse, Cecilia Reid.

Since there were insufficient assets to satisfy the first two categories of gifts in the trust, Nurse Reid, as sole trustee, petitioned to reform the trust claiming that the trust instrument did not evidence the settlor’s intent which was to give his apartment to Reid not subject to abatement. In support of her claim, Reid appended to her petition Sonder’s handwritten instructions, which she maintained supported her position. Clear and Convincing-What Does it Mean?

The appellate court allowed Reid to reform the trust to allow the gift of Sonder’s apartment to his nurse. In my view, the court’s decision rested on the fact that there existed extrinsic evidence that was considered “clear and convincing” evidence of the settlor’s intent—the handwritten notes. I would expect that oral statements, as well as written statements by the settlor would suffice for the evidence necessary to reform a trust to reflect the settlor’s intent.

WILL EXECUTION FLORIDA

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.

Discretion Remember that the ultimate decision of whether the video recording will be admitted into evidence is within the trial court’s discretion. I heard of one case where a probate judge refused to allow the videotape into evidence because the videotape was being offered in an attempt to probate a document as a will rather than evidence of the decedent’s testamentary capacity.

We are All Witnesses Remember too that there are some basic evidentiary matters that affect the admission of a video recording. If the videotape is to be considered for admission into evidence, in addition to it being determined relevant (within the probate judge’s discretion), a proper foundation must be offered by the probate litigation attorney at trial. Simply stated, this means that the witnesses to the will must be readily identifiable so that they can be summoned to testify at the trial concerning the details of the execution, and more importantly, that the videotape is a fair and accurate depiction of the events which were taped.

No Weak Links in the Chain Equally important in the evidentiary analysis of whether a videotape of a will execution is admissible is whether or not the attorney supervising the execution (or some other person involved in the execution) can establish that the tape hasn’t been tampered with or wasn’t accessible to external forces which could negate its authenticity. What this means is that if the will execution took place in your office, you must carefully secure the tape and make a contemporaneous memorialization of the tape’s location (and record each time it is moved and identify its handlers).

Don’t Hedge Your Bets Finally, it’s probably not a good idea to either believe or advise your clients that the video recording will guarantee a successful outcome in a will contest after death. While there are no Florida appellate cases directly on point, a Georgia Supreme Court probate case is illustrative of the unexpected results that arise from the different perceptions people have of the same video recording. In King v. Brown, 280 Ga. 747, 632 S.E.2d 638, 06 FCDR 2268 (Ga., 2006). Here, Palmer Rufus Bell had six children. In July 2002, Mr. Bell executed a will in which two of his children shared equally (the other children were disinherited). The probate administration attorney, who presciently recognized the likelihood of a will contest, made a video recording of the will execution. In 2003, Mr. Brown executed another will which was videotaped. At trial, a jury found that the will offered for probate, and which was videotaped, was invalid due to undue influence and incapacity! The jury’s conclusion was even upheld on appeal and affirmed by the Georgia Supreme Court, which noted that the jury can watch the video and draw its own conclusions.