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Florida Probate Blog

Category: Probate Litigation

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

Written by on Oct 1, 2008| Posted in: Probate Litigation

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.

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Undue Influence Florida

Written by on Sep 26, 2008| Posted in: Estate Litigation

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 […]

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Will Contest Florida: Evidence of Dementia?

Written by on Sep 25, 2008| Posted in: Probate Litigation

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, […]

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Will Execution Florida

Written by on Sep 23, 2008| Posted in: Probate Litigation

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 […]

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Florida Inheritance: Rights of Child born as Result of IVF after Death of Parent

Written by on Sep 20, 2008| Posted in: Probate Litigation

FLORIDA INHERITANCE Should a child have protected rights to property and inheritance where the child was created as an embryo through in vitro fertilization during his parents’ marriage, but implanted into his mother’s womb after the death of his father? FINLEY vs. ASTRUE A recent case illustrates the difficult policy and legal considerations that factor into resolving these challenging cases: Amy and Michael Finley were married in 1990 and during the course of their marriage pursued fertility treatments and ultimately participated in an in vitro fertilization and embryo transfer program. Deep Freeze In June, 2001, doctors produced ten embryos using Ms. Finley’s eggs and Mr. Finley’s sperm. Two of the embryos were implanted into Ms. Finely’s uterus and four embryos were frozen for preservation. Ms. Finley later suffered a miscarriage of both of the implanted embryos. Life and Death Mr. Finley died intestate on July 19, 2001 and shortly thereafter, […]

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Florida Probate, Paternity and DNA

Written by on Sep 19, 2008| Posted in: Estate Litigation

FLORIDA PROBATE AND PATERNITY Wait! Don’t Throw that Away! Do A Decedent’s Next Of Kin Have A Protected Right In The Decedent’s Blood Samples, Tissue, Organs And Other Body Parts That Have Been Removed And Retained By A Coroner For Forensic Examination And Testing? I recently encountered a dispute in the context of a paternity proceeding in a probate estate as to who has the rights to a decedent’s blood samples that were drawn during an autopsy. The answer was critical to the establishment of my client as the decedent’s biological child and important in assessing all the parties’ ultimate rights to the Decedent’s Homestead Property. The Florida Supreme Court has never directly dealt with the issue, which implicates not just the parties involved in the dispute (in my case, the Decedent’s sister, was the Personal Representative and my client was the biological son attempting to establish paternity) but also […]

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Parents Inheriting from Children in Intestate Probate Estate

Written by on Sep 17, 2008| Posted in: General

Can a Parent Inherit from a Child Whom the Parent Did Not Support? An infant was born severely handicapped as a result of medical malpractice by doctors at birth. The doctors were sued and a judgment was entered against them for almost three million dollars, the bulk of which was placed in a trust for the child’s benefit. The child died on September 2, 2005. The child’s mother took care of her throughout her life and received funds from the trust to attend to the child’s needs. After the child’s death, her biological father sought half of the balance remaining in the trust under their state’s intestacy laws. The child’s mother argued that the father didn’t contribute to the child’s support during her life, and owed unpaid child support, and therefore shouldn’t be entitled to half of the remaining funds in the trust. Further, the child’s mother claimed that even […]

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Undue Influence: Summary Judgments Are Rare in Cases of Undue Influence

Written by on Sep 16, 2008| Posted in: Estate Litigation

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 […]

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Florida Joint Tenancy with Right of Survivorship (JTWROS) Bank Account

Written by on Sep 16, 2008| Posted in: Estate Litigation

A Lesson in the Power of a Florida Joint Tenancy with Right of Survivorship (JTWROS) Bank Account Boy meets Girl; Boy puts Girl’s name on his bank accounts; Girl kills Boy: can Girl get the cash? Broward County Circuit Court tells Girl no, Fourth District Court of Appeals reverses, says answer is yes. John Russo and Michelle Julia never married, but their romantic relationship lasted several years.  In June 2005, John opened an account at Bank of America in his own name and less than two weeks later, he added Michelle’s name to that account.  In March 2006, John opened an investment account as well as a bank account with Charles Schwab; six weeks later, John added Michelle to those two accounts, too. On May 19, 2006, Michelle Julia shot and killed John Russo.  Less than one month had passed since her name had been added to the Schwab accounts.

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Florida Probate and Child Support: Will Change to Avoid Child Support Obligations of Beneficiary

Written by on Sep 10, 2008| Posted in: Estate Litigation

Deadbeat Dad Can’t Use Last Mom’s Last Minute Will Change to Escape Payment to Ex-Wife: CALIFORNIA COURT USES CONSTRUCTIVE TRUST THEORY TO DEFEAT LAST MINUTE WILL CHANGE BY MOTHER INTENDED TO HELP SON AVOID CHILD SUPPORT LIEN ON HIS INHERITANCE. In an interesting opinion that could have implications in Florida, a California Appellate Court recently used the legal remedy of a constructive trust to allow a testator’s ex-wife to sue her ex-husband and his sister after they allegedly coerced their mother into changing her will just prior to her death, to give to her daughter the share of the estate given to her son in a prior will so that he could avoid child support obligations. In Cabral v. Soares, 69 Cal.Rptr.3d 242 (Ct.App.2007) Tammy Cabral, the Plaintiff, filed a Complaint alleging that as of November 2005 her ex husband James was delinquent in paying court-ordered spousal and child support […]

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