I recently read the following article, which was written by Dr. Ira Turkat, a psychologist in Florida, and found it fascinating because it addresses many of the issues I encounter in the undue influence cases that I litigate.  With Dr. Turkat’s permission, I am reproducing this very insightful article on my blog.

Psychological Aspects of Undue Influence By Ira Daniel Turkat

Undue influence refers to a person’s free will being usurped by the will of another. The problem is of significant concern when dealing with deeds, trusts, and wills of the elderly or the debilitated. Frail individuals with significant financial assets are vulnerable targets for persons seeking advantage. When such manipulations occur, the consequences can be devastating.

Manipulating a person’s free will is essentially a psychological phenomenon. As such, a firm understanding of the psychological processes that underlie undue influence can be of enormous benefit to the attorney involved in these matters. This is especially so given the burden of persuasion inherent in these cases, the fact that the attorney may be forced to rely primarily on inferential and circumstantial evidence, and the task of having to state explicitly and convincingly how undue influence unfolded in the matter at hand. Read the rest of this entry

Court of Appeals Expands Reach of Genova

There is growing concern over our legislature’s inability to make laws protecting the elderly and vulnerable against having their revocable trust funds taken from them during their lives. This is a topic I have previously discussed. (See blog dated September 25, 2008, Undue Influence and Trust Revocation.) The problems addressed in my earlier blog articles arise from the Florida Supreme Court’s opinion issued twenty-five years ago in Florida National Bank of Palm Beach County v. Genova, 460 So. 2d 895 (Fla. 1984). As is evident from the Fourth District Court of Appeals ruling this week in MacIntyre v. Wedell, (Fla. 4th DCA, 08-754), 34 Fla.L.Weekly D1011a (May 20, 2009), Genova is alive and will remain so unless and until our elected officials decide to change the law. Read the rest of this entry

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. Nedd, Fighting Over the Care of Aging Parents: More Siblings Clashing Over Money and Control, USA Today, July 30, 1998, at 1A. Read the rest of this entry

In Re:  Estate of Carpenter – the presumption of undue influence in Florida and the Florida Probate Code.

I have written at great length of the various factors I assess when determining whether to accept a case for prosecution. I now turn my attention to the Florida decisional case law from the Florida Supreme Court in the seminal case of In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971) its practical application, and the Florida legislature’s response through enactment of section 733.107 of the Florida Probate Code which today supersedes Carpenter.

When the validity of a will or trust is challenged based upon the theory of undue influence, the challenger must prove the instrument at issue (will or trust document) resulted from the exercise of undue influence on the mind of the person executing the will or trust instrument. The Carpenter decision from the Florida Supreme Court sets forth the basic principal of law that the challenger’s initial burden can be met by proof of sufficient facts to raise a presumption of undue influence. Simply stated, a presumption of undue influence arises upon a showing that a party who (1) occupied a confidential relationship with the testator, (2) was a substantial beneficiary under the will, and (3) was active in procuring the instrument. Read the rest of this entry

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.

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 this problem of clerical overreaching is to treat all relationships between a testator and her spiritual advisor as per se confidential for purposes of the law of undue influence. Not only would such a solution recognize the enormous power of religious influence and thereby prevent undue leniency in the face of undue influence by mainstream clergyman, it would also guard against the temptation to assess the reasonableness of any religious or spiritual beliefs. The contestant would need to produce evidence only as to the category into which the alleged influencer fell (together with evidence of a “suspicious circumstance”); the inquiry would then turn, with the proponent having the burden of production, to the fundamental–and purely secular–issue of whether the will represented the testator’s own wishes.” 73 BROOKLYN LAW REVIEW 579 (2008). 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 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). 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

Florida Will Contest:  Can a Will Be Challenged Based On Decedent’s Alcohol and Drug Abuse?

Earlier I noted that many will contests center on an elderly Floridian suffering from the infirmities of age and the ingestion of prescription drugs to combat their mental deterioration caused by the progression of the many forms of dementia. Equally important are challenges to the testamentary capacity of a person making a will in Florida where that person is a drug addict and/or suffers from alcoholism. Read the rest of this entry