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. 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 procure 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 stem 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 Genova's 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 stationery. 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 a 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 revocation of 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 settlor 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 it 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 the 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. 5th 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 generally 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 principle of undue influence has no place in determining whether a trust has been properly revoked. The court even went so far as to say that in order to revoke 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 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 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 Diminished Capacity-A Handbook for Lawyers, 2005)
 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).