By: Melody Lynch
Do you have a loved one who recently passed away and you are concerned that their will or trust was procured by undue influence? Although the law on undue influence has not evolved much since the seminal Florida Supreme Court case of In re Estate of Carpenter in 1971, the greying of the population in Florida has resulted in an increase in undue influence claims in the courts. In order to prove undue influence in Florida, you must demonstrate that a substantial beneficiary acquired an asset via undue influence. This person must have had a confidential relationship and must have actively procured the gift in one of the following ways: (1) presence of the beneficiary at execution of the document; (2) presence of the beneficiary when the person expressed the desire to make a will or form a trust; (3) the beneficiary recommends the attorney who prepared the will or trust; (4) the beneficiary knows the contents of the will or trust prior to execution; (5) the beneficiary gives direction to the attorney preparing the document; (6) the beneficiary secures witnesses for execution; or (7) the beneficiary maintains the will or trust for safekeeping.
By: Matt O’Kane
Here’s how the recent legislative changes will affect you:
Spousal Homestead Transfer
An Alzheimer’s or dementia diagnosis is scary and can leave a patient and their family with more questions than answers. Legal guardianships can provide asset protection, stability, and comfort in uncertain times. While less restrictive alternatives to guardianship may exist in some circumstances, guardianships are a legal vehicle which provides oversight and structure to families in crisis. Guardianships bring order to families by appointing a guardian to manage the affairs of the person affected by Alzheimer’s or dementia – known as the ward.
Guardianships address three primary issues:
Lowndes attorneys obtained a favorable ruling from a probate court in Lee County, Florida, on behalf of a decedent’s estate; and thereafter, secured an affirmance of the ruling from Florida’s Second District Court of Appeal. The decedent had provided in her will for certain distributions of personal property to a beneficiary. With assistance from Lowndes probate attorney, Julie Frey, the personal representative inventoried and distributed the personal property accordingly. The beneficiary acknowledged receipt of her distribution, and filed no objections to the inventory filed by the personal representatives. Several months later, however, the beneficiary filed a petition requesting an inventory and accounting.
Lowndes trial attorney, Richard Dellinger, argued to the probate court that the beneficiary no longer had standing to request an inventory and accounting because she had already received her entire distribution of personal property. Thus, pursuant to § 731.201(23) Florida Statutes, the beneficiary was no longer an “interested party” to the estate. The probate court agreed—finding that the beneficiary had not provided sufficient evidence that she was still an “interested party”—and denied the petition. An order of discharge was entered several weeks later, but the beneficiary did not timely seek an appeal. Instead, the beneficiary filed a motion to set aside the probate court’s order of discharge on the grounds that it was not served by the probate court after entry. The motion to set aside was denied, and the beneficiary timely appealed the denial of the motion to set aside.
Lowndes appellate attorney, Jennifer Dixon, defended the appeal, obtaining a per curiam affirmance in favor of the estate. Among the arguments made to the appellate court were 1) that the motion to set aside orders did not show a colorable claim for relief because it was neither verified, nor supported by affidavits; 2) that a lack of a certificate of service on a court order is not dispositive of whether the order was, in fact, served; and 3) that orders need not be served on “non-parties,” which includes beneficiaries to an estate who have already received a complete distribution. Ultimately, the appellate court found that the probate court did not abuse its discretion in declining to vacate the order of discharge, and Attorney Frey was able to proceed in closing the estate.