Blogs from September, 2008


Undue Influence Florida

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

RBC Ministries filed a lawsuit to revoke the probation of the will of Lewis Simoneau, and Barbara Topkins filed for summary judgment to allow the will to go forward, and won.  RBC Ministries 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 over persuasion, coercion, or force that destroys or hampers the free agency and willpower of the testator.  If the 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, Topkins's argument that evidence was needed to show that Simoneau’s willpower 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 Ministries, 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)


Most Recent Posts from September, 2008