Evidence Must Be Compelling to Disinherit

What is a Pretermitted Child?

A pretermitted heir describes a person who would likely stand to inherit under a Last Will and Testament, except that the person who wrote the Will did not know or did not know of the child at the time the Will was written. Many jurisdictions have enacted statutes that allow a pretermitted child to demand an inheritance under the Will

Florida’s probate code provides when a testator omits to provide by Will for any of his or her children born after making the Will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless it appears from the Will that the omission was intentional, or the testator had one or more children when the Will was executed and devised substantially all of his or her estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the Will. Fla.Stat. §732.302. 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

Probate is the legal process of settling the estate of a decedent, specifically resolving all claims made by creditors (for example, credit card companies, hospitals, automobile loans) and distributing the decedent’s property to the beneficiaries named under a valid will or, if there is no valid will, to the beneficiaries named in the state intestacy laws.