Worried That a Sizeable Estate or Trust Gift Was Procured by Undue Influence?

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. read more

Are You Aware That Your Estate Planning Documents Could Be Voided By Disgruntled Heirs?

By: Linda Hankins

An heir, beneficiary or interested party could seek to have a person’s testamentary plan voided on one or more grounds after the testator’s death. Such actions are common if the interested party is not satisfied by the testator’s plan. Those causes of action typically include:

1. An action to void the will or trust based on the failure to execute the testamentary documents with the formalities required by the law of the state where the decedent was domiciled;

2. An action to void the will or trust alleging that the testator lacked capacity to make a will or trust; and

3. An action to void a will or trust alleging that a person close to the testator influenced the testator to change his or her testamentary plan for their own financial gain.

A lawsuit attempting to void testamentary documents on any one of the three grounds can be expensive and time-consuming. To minimize this risk, consult with a qualified estate and trust lawyer.

New Florida Guardianship Law Takes Effect July 1, 2015

By Jason Palmisano

Florida will have a new Guardianship Law effective July 1, 2015.  A copy of the new law can be found here.  A couple of the more interesting portions include:

  •  If a person initiates a judicial proceeding to determine an individual’s incapacity the Power of Attorney for the alleged incapacitated person is suspended unless the agent named in the power of attorney is a family member.  A family member who is an agent is not suspended unless an additional petition is filed to suspend the family member as an agent.
  •  The new law creates a new class of guardians:  For-Profit Corporate Guardians.
  •  A new section was added to address abuse, neglect, or exploitation by a guardian against the ward.
  • read more

    A Planned Conversation: Working With Donors To Plan Their Legacy


    Norma Stanley enjoyed presenting “A Planned Conversation: Working with Donors to Plan their Legacy” during a program hosted by the Association of Fundraising Professionals, Central Florida Chapter and Partnership for Philanthropic Planning of Greater Orlando. Planned giving is a process that an individual can use to facilitate the fulfillment or his or her philanthropic wishes and to support his or her selected non-profits and charities. Types of planned gifts include: current gifts (outright gifts – such as cash, stock, real estate, tangible personal property), expectancies (a promise to make a gift in the future – such as a provision in a Will, Revocable Trust, Irrevocable Trust, beneficiary designations (IRA/401k/life insurance policy), and deferred gifts (irrevocable transfers not available until future date – such as charitable gift annuities and charitable trusts).  Norma also discussed who needs a planned giving program, the reasons for a planned gift, how to establish a planned giving program and how to market your planned giving program and organization. For more questions, please contact Norma Stanley.

    Don’t Forget About Tangible Personal Property in Estate Plan

    By Jason Palmisano

    The disposition of a decedent’s tangible personal property has the potential to cause more animosity among the beneficiaries of an estate than the disposition of any other type of asset. Sibling rivalry, unresolved conflict, children from different marriages, step-parents, and in-laws can be a recipe for disaster when two (or more) beneficiaries want the same item of tangible personal property.  Hurt feelings are compounded because of emotional attachments to a particular item and the grieving of a loved one’s death.  The following are some practical steps to help minimize the risk of family disputes over tangible personal property:

    1. Florida law allows an individual to prepare a separate writing disposing of tangible personal property if the separate writing is referenced in the will and the separate writing is signed by the individual. Confirm your will contains this provision. If it does then you may execute a separate writing that specifically lists meaningful items of tangible personal property you want to pass to a specific beneficiary.  Of course, you also need to specifically name the individual you want to receive the property. Further, you should instruct how the item is to be distributed if the named beneficiary does not survive (i.e,, do you want the item to go to the beneficiary’s children?).  Be sure to sign the separate writing.  If your will does not contain a provision allowing for a separate writing then you should update your will with this provision.

    2.  Consider holding a family meeting to talk to your adult children about which assets you want to be distributed to certain individuals after your death.   These desires must be documented in a separate writing as discussed above.  You can even take pictures or videos of the items to document your wishes.

    3.  Give away meaningful possessions to beneficiaries during your life.   Avoid giving away items on your death bed as these bequests are more susceptible to challenges and questioning by loved ones who may feel cheated.

    A little extra planning for your tangible personal property can go a long way in preserving family harmony after your death.  Talk to your attorney to ensure you are doing all you can to properly distribute your tangible personal property pursuant to your wishes and to help avoid conflict in your estate administration.