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Florida Probate Blog

Posts Tagged: will contest

Testamentary Capacity: Do We Need Legal Reform?

Written by on Nov 11, 2008| Posted in: Estate Litigation

Previous blog posts have discussed the fundamentals of will contests in Florida. These actions occur when a will is offered for probate (See Post dated October 28, 2008 What is the Definition of Probate) which is always after the testator has died. One of the most common grounds for a person seeking to invalidate a will offered for probate is that the will was executed at a time when the testator (the person signing the will) lacked testamentary capacity. The legal standard for testamentary capacity is that the testator knew the nature and extent of his or her property, the natural objects of his or her bounty (property) and the contents of his or her estate plan. See, In re Estate of Tolin, 622 So.2d 988, 990 (Fla. 1993). Since the person signing the will isn’t alive to testify or be examined in order to determine testamentary capacity, the court […]

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Estate of Carpenter

Written by on Oct 24, 2008| Posted in: Probate Litigation

In Re:  Estate of Carpenter – the presumption of undue influence in Florida and the Florida Probate Code. I have written at great length of the various factors I assess when determining whether to accept a case for prosecution. I now turn my attention to the Florida decisional case law from the Florida Supreme Court in the seminal case of In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971) its practical application, and the Florida legislature’s response through enactment of section 733.107 of the Florida Probate Code which today supersedes Carpenter. When the validity of a will or trust is challenged based upon the theory of undue influence, the challenger must prove the instrument at issue (will or trust document) resulted from the exercise of undue influence on the mind of the person executing the will or trust instrument. The Carpenter decision from the Florida Supreme Court sets forth […]

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Undue Influence: Lawyers Who Name Themselves or Family Members as Beneficiaries of Wills

Written by on Oct 21, 2008| Posted in: Probate Litigation

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 […]

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Do I Have a Case? The Presumption of Undue Influence?

Written by on Oct 14, 2008| Posted in: Estate Litigation

Do I Have a Case? (Part Four) As I have indicated in prior posts, there are certain categories of evidence that I look for in order to prove undue influence, which 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 Estate, 253 So. 2d 697 (Fla. 1971). In Florida, the legislature has created a presumption of undue influence.  What does this mean?

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Probate Attorney’s Fee Petitions

Written by on Oct 9, 2008| Posted in: Probate Litigation

Fourth District Opinion Suggests Attorney Fee Petitions Are Subject to De Novo Review: An examination of Section 733.106 fee petitions and Duncombe v. Adderly, –So.2d–, 2008 WL 4489234, 33 Fla.L. Weekly D2367a (4th DCA October 8, 2008). The Law The Florida Probate Code provides, at Fla.Stat. §733.106(3), that “any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.” Thus, an attorney who has rendered services to an estate may apply for an award of attorney’s fees. The petition for fees is then reviewed by the probate court, and after hearing, either approved, denied or modified by the probate court.

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What Evidence Points to the Conclusion of Undue Influence?

Written by on Oct 2, 2008| Posted in: Estate Litigation

Do I have a Case? (Part Two) As I have indicated in prior posts, 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 over-persuasion, 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 Estate, 253 So. 2d 697 (Fla. 1971).

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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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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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