UNDUE INFLUENCE FLORIDA

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

(Part One)

If I had a nickel for each time a potential client or a referring probate administration attorney asked me this question, I’d retire today. The answer, of course, depends upon a careful examination of each individual case, and frequently the successful resolution of a probate dispute hinges upon the discovery of evidence (often medical and financial records) produced after a lawsuit has commenced.

Generally, 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 Case, 253 So. 2d 697 (Fla. 1971).

The criteria to consider when determining whether the beneficiary of a will actively procured the will include (1) the beneficiary’s presence at the execution of the will, (2) the beneficiary’s presence when the testator expresses a desire to make a will, (3) the beneficiary’s recommendation of an attorney to draw the will, (4) the beneficiary’s knowledge of the contents of the will prior to execution, (5) the beneficiary’s instructions to the attorney on the preparation of the will, (6) whether the beneficiary secured the witnesses to the will, and (7) whether the beneficiary has possession of the will subsequent to execution. In re Estate of Flohl, 764 So.2d 802 (Fla. 2d DCA 2000).

One of the first things I examine in a potential case is the susceptibility of a person to undue influence. For example, age and physical limitations or disability are always relevant to the issue of whether a person was subject to being unduly influenced. Often old age is coupled with the person’s inability to handle their own business affairs (i.e. having someone else write checks for them). I also look into the physical and mental status of the subject person at or around the time of the execution of the will or trust at issue. All too often, it is discovered that a caretaker will withhold comfort measures from a suffering person in order to unduly influence the person into making or destroying a will or trust. Other times I find that a person who cannot read or write is presented with a lengthy legal document which could have only been explained by the person who presented it to them (and who usually benefits from its content!).

The next important element I examine is whether the person(s) who allegedly exerted undue influence was disposed to influence the susceptible person. This is usually never proven by direct evidence, since there is rarely a witness who can testify that they observed the conduct perpetrated upon the susceptible person. Thus, in my practice, we search for certain kinds of circumstantial evidence pointing to the conclusion that the accused person(s) possessed the disposition to unduly influence the victim. I have had success in cases where I can demonstrate that the undue influencer(s) had direct, consistent, and undisturbed access to the susceptible person. This access, coupled with evidence that the undue influencer(s) took efforts to exclude other persons, especially other family members, from access to the susceptible person, is strong circumstantial evidence of an important element of undue influence and tends to prove the opportunity of the accused person(s) to exert undue influence.

The relationship between the undue influencer and the susceptible person is also a practical method of proving, by circumstantial evidence, the opportunity or disposition to commit undue influence. For example, a confidential relationship between the two persons, coupled with a will or trust executed during the time of the relationship, will usually be sufficient to raise a presumption of undue influence. Porter v. Estate of Spates, 693 So.2d 88 (Fla. 1st DCA 1997). A confidential relationship is defined in Florida as a relationship “where there is a relation of trust and confidence between persons; that is, where confidence is reposed by one party and trust accepted by the other. It encompasses informal relationships based upon trust or confidence that one person places in another.” Estate of Brock. 692 So.2d 907 (Fla. 1st DCA 1996.). This includes professional relationships (i.e., attorney-client; accountant-client) and fiduciary relationships (i.e.,guardian-ward; trustee-beneficiary). The issue of whether, and under what circumstances, spouses may share a confidential relationship, in the legal sense for a will contest, is a more complicated issue that will be addressed in a separate post.

In sum, the foregoing points highlight some of the things I look for in my initial assessment of the case, in order to answer the inevitable inquiry: “Do you think I have a good case?”

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.

Is Florida legislation needed to address the presence of undue influence in trust revocation situations involving vulnerable elderly adults?

It is no secret that Florida is home to a 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.[1]

Many Floridians who have revocable trusts as an aspect of their estate planning are susceptible to what I consider to be an area of concern as to the existing status of the law as it stands in Florida.  Specifically, I am concerned that existing decisional case law in Florida allows for persons, whose capacity to make adequately-considered decisions in connection with their revocable trusts is diminished because of dementia, to remain vulnerable to undue influence.

Undue influence has been defined as over persuasion, coercion, or force that destroys or hampers the free agency and will power of the person.  RBC Ministries v. Tompkins, 974 So. 2d 569 (Fla. Dist. Ct. App. 2d Dist. 2008).  My experience as a probate litigator has consistently confirmed that Florida’s elderly, especially those suffering from the effects of dementia, are particularly vulnerable to undue influence when it comes to estate planning matters, including the formation and revocation of wills and trusts.

The Florida legislature evidently shares my concern and has codified the public policy against persons exploiting Florida’s elderly through the use of undue influence in estate planning matters.   This is evident in the Florida Probate Code’s prohibition against undue influence in the preparation of any part of a will:

“A will is void if the execution of procured by fraud, duress, mistake, or undue influence.  Any part of the will is void if so procured, but eh remainder of the will not so procured shall be valid if it is not invalid for other reasons.”  Fla.Stat. § 732.6165.”

This principle is further underscored by the evidentiary presumptions written into law by the Florida legislature’s enactment in 2002 of the evidentiary rule shifting the burden of proof in a will contest involving allegations of undue influence:

“(2) The presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301-90.304.”  Fla.Stat. §733.107.

My growing concerns stems from the clash between the public policy against undue influence and the Florida Supreme Court’s decision in Florida National Bank of Palm Beach County v. Genova, 460 So.2d 895 (Fla., 1984).    Genova involved an elderly woman, Mrs. Genova, who was seventy-six years old when she married Mark Genova, who was thirty-two years old.  Just months after the marriage, Mrs. Genova created a Revocable Trust naming Florida National Bank of Palm Beach and herself as co-trustees.  A year later, the Genoas were divorced and a final judgment regarding property rights was entered by the trial court judge invalidating one transfer of certain of Mrs. Genova’s assets to her husband based upon a finding of undue influence practiced upon Mrs. Genova by her husband.

Less than six months later, the Genovas remarried.  Five days after their remarriage, Mrs. Genova wrote a letter to a trust office of Florida National, requesting that her trust be revoked.  She wrote this letter in the presence of her husband, Mr. Genova, at his restaurant, the Alibi Bar, on the Alibi’s stationary.  The following day Mrs. Genova signed a power of attorney prepared by an attorney introduced to her by her husband, directing the transfer of the trust assets to a different account.  The following day the attorney presented the power of attorney to a different trust officer at Florida National who refused to accept it because of reservations caused by the officer’s knowledge of the undue influence findings in the divorce proceedings and the subsequent remarriage to Mr. Genova.   A lawsuit was filed and after trial in the probate court, final judgment was entered invalidating the attempt by Mrs. Genova to revoke the trust since they were effect through the use of undue influence practiced intentionally by Mr. Genova upon Mrs. Genova.

The case worked its way through the appellate process, eventually arriving at the Florida Supreme Court.  The Florida Supreme Court reversed the trial court and held that the principle of undue influence has no place in determining whether a revocation of a trust is valid!  The language of the opinion suggests that the Supreme Court blamed Mrs. Genova for allowing herself to be victimized:

“The courts have no place in trying to save persons such as Mrs. Genova, the otherwise competent settler of  a revocable trust, from what may or may not be her own imprudence with her own assets.  When she created this trust, she provided a means to save herself from her own incompetence, and the courts can and should zealously protect her from her own mental incapacity.  However, when she created this trust, she also reserved the absolute right to revoke if she were not incompetent.  In order for this to remain a desirable feature of a trust instrument, the right to revoke should also be absolute.”  Genova, 460 So.2d at 898.

I tend to agree with Supreme Court Judges Overton and McDonald, who dissented:

“The trial judge found that the settler had been unduly influenced causing her to revoke her trust.  Her act, therefore, was not the exercise of her right to revoke, but rather was the will of another foisted on her.  Under these circumstances the revocation should be voided.”  Genova at 898.

The Genova decision sets a dangerous precedent, in my view, for legal justification of elder abuse in Florida.  For example, the Fifth District Court of Appeals relied on Genova to validate a trust revocation involving facts even more egregious than those found in Genova in its opinion rendered in Freeman v. Lane, 504 So.2d 1297 (Fla. 5^th DCA 1987).  Freeman involved Mrs. Lane, an elderly Florida woman who created a revocable trust which provided that upon her death, each of her six children would share her estate evenly.  The trust was originally funded with stock, which over time, multiplied several times over and became worth over $1,000,000.  Mrs. Freeman named herself and James Lane as co-trustees.

The trial court heard evidence that Mrs. Lane was being unduly influenced by two of the children and that she suffered from cerebrovascular disease (hardening of the brain arteries) and was “confused and disoriented” according to a nurse’s notes at the time of her last hospital discharge.  Further, the Court heard evidence concerning Mrs. Lane’s memory lapses and general poor health.  After hearing all of the evidence, the trial court noted that Mrs. Lane was “an old 69 year old” woman who slept through most of the testimony at the trial and was obviously “confused”:

“She said she guessed she was just confused at least once. Several times she said, “I can’t remember,” on the redirect and, “I don’t know what I mean by that,” and “I just don’t remember.” And several times in answer to questions, she first said, “No,” then said, “Maybe,” and then said, “Well, yes.”

I really feel that the Court does need to protect people from their mental incompetence and that this is such a case and that Mrs. Freeman unfortunately does not have the mental capacity to handle her own affairs at this time.

Therefore, the Court is going to find that the trust has not been validly revoked. I really think that probably when a new trustee is appointed-and maybe if one thing is to be faulted, it’s that this trust grew very rapidly in recent years and all the eggs are in one basket.”  Freeman v. Lane, 504 So.2d 1297, 1299.

On appeal, the Fifth District Court of Appeals, relying on Genova held that the principal of undue influence has no place in determining whether a trust has been properly revoked.  The court even went so far to say that in order to revoke a trust, the elderly adult doesn’t need to have the capacity and aptitude to deal in financial matters:

“It is apparent from the comments by the trial judge, quoted above, that he erroneously concluded that the mental capacity to revoke a trust is equated with the capacity to handle financial matters. This is not the law. In order to revoke a trust, one merely needs to have the capacity to understand the nature of the transaction, not necessarily an aptitude in dealing with financial matters. If the position of the trial court and the appellee were correct, then the standard applicable to invalidate a revocation would be similar to that required for an adjudication of incompetency.”  Freeman at 1300.

These types of cases cause me grave concern for Florida’s elderly who are susceptible to undue influence.   My practice will continue to litigate these cases to protect the elderly under the new §736.0601 which makes the capacity required to revoke a revocable trust the same as that required to make a will.  It will be interesting to see how courts treat the revocability issue in light of the new section and in light of the existing decisional case law.

Source (the statistics and studies regarding dementia were learned through the American Bar Association’s Commission on Law and Aging: Assessment of Older Adults with Diminshed Capacity-A Handbook for Lawyers, 2005)

[1] University Health Sys. Consortium & U.S. Dep’t of Veterans Affairs, Dementia Identification and Assessment:  Guidelines for Primary Care Practitioners (1997); David S. Geldmacher & Peter J. Whitehouse, Evaluation of Dementia, 335 New Eng.J.Med. 330 (1996); Peter V. Rabins et al., Practical Dementia Care (1999).

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.

Undue Influence Florida

When can you get a summary judgment in Florida when there’s been undue influence? Not often.

RBC Ministeries filed a lawsuit to revoke probation of the will of Lewis Simoneau, and Barbara Topkins filed for summary judgment to allow the will to go forward, and won.  RBC Ministeries appealed, arguing that there was undisputed evidence establishing a legal presumption that Barbara Topkins exerted undue influence over Lewis Simoneau, who lacked testamentary capacity.  It was urged that the will was void, and a prior 1977 Will was legal (which named RBC Ministeries, not Barbara Topkins, as its residual beneficiary).

Undue influence is the overpersuasion, coercion or force that destroys or hampers the free agency and willpower of the testator.  If a main beneficiary has a confidential relationship with the person who signs the will, and is actively involved in that person finalizing that will, then the law will assume that the beneficiary unduly influenced the person making out their will.  Evildoing will be legally presumed, although the facts of each situation of “undue influence” are different.

Here, Barbara Topkins was present at the execution of the will by Lewis Simoneau.  She was present when Mr. Simoneau expressed a desire to make a will.  Barbara Topkins did not recommend an attorney to draft the will — she drafted the will herself, on her home computer – and obviously knew the contents of the will before it was signed by Mr. Simoneau.  She also found the witnesses to the will; they were neutral parties.  After the will was signed, Barbara Tompkins held onto it.

The appellate court reversed and remanded for further proceedings.  Under Florida law, Tompkins argument that evidence was needed to show that Simoneau’s will power was compromised fails – the undisputed evidence of undue evidence creates a legal presumption that Simoneau was not acting of his own free will.  Instead of summary judgment, Tompkins must return to the trial court and offer evidence to prove she had a reasonable explanation for her active role in his affairs.  Once the presumption of undue influence was established, summary judgment was no longer an option for Tompkins.

Practitioner Point: Burdens of proof may be litigation technicalities, but their importance cannot be underestimated when considering courtroom time and expense.  Here, the key issue is whether or not Lewis Simoneau’s true intent is expressed in his latest will – but who has the burden of proving that, and how they go about it – is obviously a complicated one.

Real World Point: It’s always a good idea to keep yourself at arm’s length when dealing with someone’s will.  No matter how close your relationship may be, it is best to avoid even the appearance of influence and this is easily done by hiring a probate practitioner to draft your will for you.

RBC Ministeries, Appellant, v. Barbara Tompkins, as personal representative of the Estate of Lewis A. Simoneau, Appellee, , 33 Fla. L. Weekly D 523 (February 15, 2008)

Appeal from Polk County Circuit Court Judges Ronald A. Herring and John F. Laurent, to Second District Court of Appeals (Opn: Justice Canady, Justices Fulmer and Casanueva concurring)