Clark Skatoff PAPalm Beach Gardens, FL

Improper execution

Construction of will language

Incapacity

Undue influence

Insane delusion

Mistake of fact

Fraud

In accordance with Section 732.502,Florida Statutes (2011),

Testator’s signature

Florida Statutes (2011),

every will must be in writing and executed with thetestator's signature at the end or the testator’s name canbe written at the end by someone else in that person’spresence at the testator’s direction.

Must witness the testator’s signing or acknowledgementthat 1) the testator previously signed the will, or 2) thatanother person has subscribed the testator's name to it,must be in the presence of at least two attestingwitnesses. § 732.502(b), Fla. Stat. (2011)

What must a witness witness?

witnesses. § 732.502(b), Fla. Stat. (2011)

The attesting witnesses must sign the will in the presence of the testatorand in the presence of each other. § 732.502(c), Fla. Stat. (2011)

The Monkey case: Jordan v. Fehr, 902 So.2d 198 (Fla. 1st DCA 2005)(reversed for improperexecution)Deposition of witness #1 “I’m like a monkey, I wrote my name and address and I was gone.”Deposition of witness #2 “I don’t know if he [witness #1} was sitting down, standing nextto him, or whatever. He may have been in the bathroom for all I know.”

Formality for witness signatures

Codicil-must be executed with same formalitiesas will. § Fla. Stat. 732.502(5), (2011).

Is a witness disqualified if they are beneficiary orinterested? NO § Fla. Stat. 732.504(2), (2011).

What if the witness is incompetent, do theycount as a valid witness? NO § Fla. Stat.732.504(1), (2011).

Who may make a will?Section 732.501, Florida Statutes (2011),“Any person who is of sound mind and“Any person who is of sound mind andwho is either 18 or more years of age oran emancipated minor may make awill.”

In order for a testator to execute a valid will, thatperson must have “the ability to mentallyunderstand in a general way (1) the nature andextent of the property to be disposed of, (2) thetestator's relation to those who would naturallyclaim a substantial benefit from his will, and (3) aclaim a substantial benefit from his will, and (3) ageneral understanding of the practical effect of thewill as executed.” Raimi v. Furlong, 702 So.2d 1273,1286 (Fla. 3d DCA 1998).

In determining mental capacity at the time of thewill execution, it is proper for a court to considerthe mental state of the testator before and after theexecution of the will. In Re Estate of Zimmerman, 84So.2d 560 (Fla. 1956).

A progressive disease that physically and mentally weakens themind of a testator so that he is so depleted of his mental processes willvoid the execution of a will that was procured during such time ofweakness. In re Auerbacher’s Estate v. Auerbacher, 41 So.2d 659 (Fla.1949)(probate court revokes will of testator who was mentally andphysically depleted as a result of a progressive infliction).physically depleted as a result of a progressive infliction).

"A testator may still have testamentary capacity to execute avalid will even though he may frequently be intoxicated, usenarcotics, have an enfeebled mind, failing memory, [or]vacillating judgment." In re Estate of Weihe, 268 So. 2d 446 (Fla.4th DCA 1972).

A will may even be executed by one who is insane or exhibits"queer conduct," so long as it is done during a lucid interval. In reEstate of Weihe, 268 So. 2d 446 (Fla. 4th DCA 1972).

Section 732.5165, Florida Statutes (2011),

“A will is void if the execution is procured by“A will is void if the execution is procured by

fraud, duress, mistake, or undue influence.

Any part of the will is void if so procured, but

the remainder of the will not so procured shall

be valid if it is not invalid for other reasons.”

Undue influence amounts to over persuasion, duress, force, coercion or artful or fraudulent

contrivances to such a degree that there is a destruction of free agency and willpower.

Derovanesian v. Derovanesian, 857 So.2d 240, 243 (Fla. 3d DCA 2003).

Factors establishing presumption of undue influence: confidential relationship

and active procurement. Landmark case Carpenter v. Carpenter, 253 So.2d 697

(Fla. 1971)

Confidential relationship

•Carpenter in quoting, Quinn v. Phipps, 93 Fla. 805 (1927), stated, “‘[t]he term fiduciary or confidential relation,’ is a very broad one . . .[t]he rule embraces both technical and fiduciary relations and thoseinformal relations, which exist wherever one man trusts in and reliesupon another.’” Id. at 701.

Substantial Beneficiary-Do you still need to be “substantial” beneficiary?

• Maybe? Mentioned more in earlier cases. Goes to weight of evidence.Suggestive of motive of alleged influencer to procure benefit out ofwill.

o presence of beneficiary during execution of thewill

In determining whether one has actively procured a will, Carpenter sets forth a

non-exclusive list, which can be considered general guidelines for determining

whether there was active procurement:

willo presence of beneficiary on those occasions when

the testator expressed a desire to make the willo recommendation by the beneficiary of an

attorney to draft the willo knowledge of the contents of the will by

beneficiary prior to executiono instructions by a beneficiary on preparation of

willo safekeeping of will by beneficiary subsequent to

execution

Each case is fact specific: Newman v. Brecher, 887 So.2d 384, 386(Fla. 4th DCA 1994)(Carpenter factors “could” be considered andeach case fact specific).

Lower burden when you have mental weakness: In re Estate ofReid, 138 So.2d 342, 349 (Fla. 3d DCA 1962) (higher burden of proofrequired to overcome inference of undue influence where testatorrequired to overcome inference of undue influence where testatorhas impaired mental powers or clouded intellect, than where thetestator is in good health).

Planting the seed in decedent’s mind may not be enoughDerovanesian v. Derovaniesian, 857 So.2d 240 (Fla. 3d DCA 2003). “Theevidence must show that, having so planted the seed, the brothersand niece exercised sufficient influence over her mind that[Decedent] was deprived of her own free will in making the will”

Daughter secured attorney, present when willexecuted, and knew of will contents. Court reliedheavily on testimony of drafting attorney and foundtestator had “independent mind”

The court in Auerbacher, which was decided before Carpenter, consideredseveral other underlying factors that may not be as apparent, butnevertheless are just as relevant, such as:

In re Auerbacher’s Estate v. Auerbacher, 41 So.2d 659, 661 (Fla. 1949)

circumstances surrounding the type of relationship betweenthe testator and the alleged undue influencer

alienation between the testator and his family

changes in the dynamic of the testator’s family

opportunity and evidence of an alleged undue influencer’simposition of their will on a testator who is physically andmentally weakened

Isolation from family

Inability to manage financial affairs

Necessity for caregiver

Dependent on others

o Cripe v. Atl. First Nat'l Bank, 422 So. 2d 820 (Fla.o Cripe v. Atl. First Nat'l Bank, 422 So. 2d 820 (Fla.

1982)(finding close dependant relationship supported

finding of undue influence).

Secrecy of execution

Substantial deviation from prior estate plans

Unnatural estate plan

Changes in family dynamic

Section 732.5165, Florida Statutes (2011),“A will is void if the execution is procured by fraud, duress, mistake,or undue influence. Any part of the will is void if so procured, but theremainder of the will not so procured shall be valid if it is not invalidfor other reasons.”

Goodman v. Strassburg, 139 So. 2d 163, 164 (Fla. 3d DCA 1962),Goodman v. Strassburg, 139 So. 2d 163, 164 (Fla. 3d DCA 1962),“For fraud and deceit to be actionable, there must have been afalse representation of a material fact made for the purpose ofinducing another to change position, which change inposition was occasioned by reliance on the falserepresentation to the damage of the one to whom therepresentation was made.”

Fraud vs. undue influence-fraud uses deceit to defeat the testator’swish while undue influence involves the substitution of one’s thoughtsin place of the testator

Section 732.5165, Florida Statutes (2011)-“A will is void ifthe execution is procured by fraud, duress, mistake, orundue influence. Any part of the will is void if so procured,but the remainder of the will not so procured shall be valid ifit is not invalid for other reasons.”

Mistake in the inducement or mistake of extrinsic fact isinsufficient.

“Absent an insane delusion which destroys testamentarycapacity, the testator's mistaken conception of some factextrinsic to the document, inducing a particulartestamentary disposition, does not vitiate the will.” York v.Smith, 385 So. 2d 1110, 1111 (Fla. 1st DCA 1980); also see Forsythev. Spielberger, 86 So.2d 427 (Fla. 1956).

“An insane delusion has been defined as a spontaneous conceptionand acceptance as a fact, of that which has no real existence exceptin imagination . . . .[a] conception originating spontaneously in themind without evidence of any kind to support it, which can beaccounted for on no reasonable hypothesis, having no foundation in

Hooper v. Stokes, 107 Fla. 607, 609 (Fla. 1933),

accounted for on no reasonable hypothesis, having no foundation inreality and springing from a diseased or morbid condition of themind.”

No insane delusion if based on known facts whether theymay be true or false. In re Estate of Supplee, 247 So. 2d 488,490 (Fla. 2d DCA 1971).

Levin v. Levin, 60 So.3d 1116 (Fla. 4th DCA 2011). Levin court discusses factssuggestive of revocation based on insane delusion. In Levin, the decedent believedand told the drafting attorney that her daughter had only seen her once in sevenyears but actual evidence supported many visits by daughter.

Section 732.6005, Florida Statutes (2011),“[t]he intention of the testator as expressed inthe will controls the legal effect of the testator’sdispositions.”dispositions.”

Is there a true ambiguity?Look to four corners of document fortestator’s intent. Bourgeois v. Eberhart, 472So.2d 1274 (Fla. 4th DCA 1985); In ReEstate of Wagner, 423 So.2d 400 (Fla. 2dDCA 1982).

If no ambiguity, no extrinsic evidence to show differentintent is allowed and the court must interpret the plainmeaning of document. See Adkins v. Woodfin, 525 So.2d 447(Fla. 4th DCA 1988).

The fact that the litigants prescribe twodifferent meanings to the document at issue,does not mean there is an ambiguity. Kipp v. Kipp,844 So. 2d 691 (Fla. 4th DCA 2003); also seeLambert v. Berkley S. Condo Ass’n, 680 So.2d 588 (Fla.4th DCA 1996).

“Where there is an ambiguity in a will, extrinsic evidence may be admitted

Extrinsic Evidence: When can you provide testimony as towhat the testator wanted?

In Re Estate of Budny, 815 So.2d 781 (Fla. 2d DCA 2002),“Where there is an ambiguity in a will, extrinsic evidence may be admittedto resolve the uncertainty so that the probate court may effectuate the trueintent of the testator.”

“[A]ids to testamentary construction may be employed only when thetestator's intent is obscured by a discernible ambiguity or uncertaintyarising from the language used.”

Also see Filkins v. Gurney, 108 So. 2d 57, 58 (Fla. 2d DCA 1959); In re Estate ofWood, 226 So. 2d 46 (Fla. 2d DCA 1969); Dutcher v. Estate of Dutcher, 437 So. 2d788, 789 (Fla. 1983).

Only post death action may be brought for willcontest.

Section 732.518, Florida Statutes (2011)- “An action to contestthe validity of a will may not be commenced before the death ofthe validity of a will may not be commenced before the death ofthe testator.”

Section 733.109, Florida Statutes (2011)- “Any interested person,including a beneficiary under a prior will, unless barred under s.733.212 or s. 733.2123, may commence the proceeding before finaldischarge of the personal representative.” (733.212, 733.2123-timebarred through proper notice).

Beneficiary under next prior valid document (YES)

What about a one dollar beneficiary? (NO) Newman v. Newman, 766 So. 2d 1091(Fla. 5th DCA 2000)(lack of standing when prior will bequeathed gift of one

Does the contestant have standing?

dollar to contestant)

Not a beneficiary under prior document but intestate heir (MAYBE)Must determine if doctrine of dependent relative revocation does notapply. Cates v. Fricker, 529 So. 2d 1253 (Fla. 2d DCA 1988)

Intestate heir with no prior documents (YES)

Personal representative under prior will (YES)

Not a beneficiary under prior document and not an intestate heir (NO)

No contest clause-barrier to bringing suit? No

Section 732.517, Florida Statutes (2011),Section 732.517, Florida Statutes (2011),“A provision in a will purporting to penalize anyinterested person for contesting the will orinstituting other proceedings relating to the estateis unenforceable.”

What if estate is already opened and will was admitted?Petition to revoke probate

What to file?

What if no estate is open, do you have to wait? NOCAVEATFile Petition for Administration

Be the first in the door (do not wait)

Can you file a petition for intestate administration if there is a will(either deposited or not yet deposited) which you feel is void?

YES, Fla. Prob. R. 5.200(h). Need to make statement ofwhy will or codicil is not being offered for probate

Undue influence/incapacity (Plead together)

Renunciations of beneficial interest“[A] beneficiary under a will who desires to contest that will must firstdivest himself of any beneficial interest accruing to him thereunder as acondition precedent for bringing his contest.” In re Estate of Pellicer, 118 So. 2d59, 60 (Fla. 1st DCA1960).

How much support do you need to state a claim?Allege what you know or believe to be true to get over a motion

to dismissUndue influence-active procurement, destruction of mind,

mental weakness, control over affairs, timeframeIncapacity-medical condition, mental disease, timeframe

59, 60 (Fla. 1st DCA1960).Qualified Renunciation is all you need. In Re Estate of Harby, 269 So.2d433 (Fla. 2d DCA 1972).Example: Petitioners renounce any interest they may have underthe Last Will for the purpose of contesting such document.

Generally civil rules of procedure automatically apply

Florida Probate Rule 5.025,Florida Probate Rule 5.025,

“The following shall be adversary proceedings unlessotherwise ordered by the court: . . . construe a will . . .revocation of probate of a will.”

If in doubt, declare it adversarial and serve formal notice.

What are you looking for in prosecution?Establish Carpenter factorsEstablish instances of control by undue

influencerEstablish weakness or incapacity of decedentEstablish weakness or incapacity of decedentPhysical ailments

Mental ailmentsDementiaAlzheimer’s

Dependency on othersEspecially for financesEstablish involvement andparticipation by alleged undueinfluencer

InterrogatoriesProductionDeposition

Establish Carpenter factors through rogsEstablish Carpenter factors through rogs

Explore any defenses pled by proponent

Explore control/dependency

Management of financial and/or health affairs

Drafting attorney-diminish credibility (lack of memory for decedent’s execution,

insufficient inquires on decedent’s decision to change estate plan and decedent’s condition, lack of

expertise in assessing mental or physical condition, inexperience in dealing with situations of undue

influence and incapacity)

Request the decedent’s bank recordsWhat to look for:

Titling of accountsJoint accounts with undue influencerPOA accounts with undue influencerPOA accounts with undue influencerPay on death designations

Account opening/closing documentsSignaturesTime frame of account setup

Checks written or signed by undue influencerSubstantial changes to accounts

By whomWithdrawals (checks to undue influencer)Power of attorney transactions

Request the decedent’s medical recordsWhat to look for:

Diseases Alzheimer’s Dementia Liver failure

Mental stateOrientation: Person, place, time

Look for X1 or X2 Liver failure Kidney failure Other organ failures

Brain scansCat scansMRI

MedicationsNamenda, Aricept (Alzheimer’s disease)

Labstoxicity in the body can affect brain

Look for X1 or X2Nurse notes, intake notesMini mental status examPsychiatrist reports

Subpoena the drafting attorney’s recordsWhat to look for:

Notes Explanation for new estate plan Knowledge of assets and heirs

Billing recordsInvoice-Bill sent to/paid by undueinfluencer Knowledge of assets and heirs

Mistakes by testator Lack of information obtained Communications

oEmailsoCommunications with undue influenceroSending drafts to alleged undue influencer

Remember no attorney-client privilegeAll communications with Decedent are admissibleFla. Stat. 90.502(b)

influencer Time logs Prior drafts

o Lots of changes

Significant changes

Should you hire expert?Consider costs involved (probably several thousand)Consider facts of case

Are the medical records sufficient?Do you need further proof?Is your discovery devoid of any support for claims?

Benefit or necessity of preliminary report for use at summaryjudgment or mediationjudgment or mediation

What type of expert should you hire?Undue influence: psychiatrist or psychologistIncapacity-determine nature of medical condition

oToxicity to brain-neurologistoDementia/Alzheimer's-psychiatrist

Documents to provide expert for review:medical records, depositions, estate planning documentsEstablish timeline to assist expert in his or her review

Fee range: $400-$800 per hourVaries for task: trial and deposition more costlyRetainer usually required of several thousand

Establish believable and common sense explanation for change

Distant relationship or estranged relationship between contestant and

decedent

Care provided by proponent vs. lack of care by contestantCare provided by proponent vs. lack of care by contestant

Patterns of giving by decedent

Independence of decedent

Decedent’s ability to manage financial affairs

Proponent’s lack of involvement in estate planning process

Talk with your drafting attorney and other witnesses, including friends of

decedent

Ask contestant the basis for claims-go through the petition filed, what documents or witnesses

Interrogatories, Production, Depositions

Seeking out the reverse of what contestant istrying to establish

does he or she have, if lack of relationship is a defense, ask them to prove communications withDecedent (cards, phone calls, visits, etc.)Witnesses-friends of decedent, attending physicians, familyMedical records-do they show capacity and lack of mental issuesBank records-was the decedent writing his or her own checks and authorizing transactionsDrafting attorney testimony-

Will they testify in your favor? Most likely-YESDo they recall the Decedent’s particular execution?

Witnesses to execution-Will they testify in your favor? Most likely-YES (but recall the Monkey case-confirm)Do they recall the decedent?Take their deposition if they may become unavailable or they are out of state

Does administration cease during will contest? NO

Section 733.109, Florida Statutes (2011),

“Pending the determination of any petition for“Pending the determination of any petition forrevocation of probate, the personal representativeshall proceed with the administration of the estateas if no revocation proceeding had beencommenced, except that no distribution may bemade to beneficiaries in contravention of the rightsof those who, but for the will, would be entitled tothe property disposed of.”

What about if the appointed personal representativeis alleged undue influencer, can they be removed onthat basis?

Prior “bad” acts before assuming fiduciary dutyPrior “bad” acts before assuming fiduciary dutydoes not countMust relate to administration of estate (see

733.504, Fla. Stat. (2011)Will contest alone is not conflict of interest

Adjudication that the personal representative is incapacitated.

Physical or mental incapacity rendering the personal representative incapable of the discharge of his or her duties.

Failure to comply with any order of the court, unless the order has been superseded on appeal.

Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required.

Wasting or maladministration of the estate.

Section 733.504, Florida Statutes (2011), governs grounds for removal

Wasting or maladministration of the estate.

Failure to give bond or security for any purpose.

Conviction of a felony.

Insolvency of, or the appointment of a receiver or liquidator for, any corporate personal representative.

Holding or acquiring conflicting or adverse interests against the estate that will or may interfere with the

administration of the estate as a whole. This cause of removal shall not apply to the surviving spouse because of the

exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in this code.

Revocation of the probate of the decedent's will that authorized or designated the appointment of the

personal representative.

Removal of domicile from Florida, if domicile was a requirement of initial appointment.

The personal representative would not now be entitled to appointment.

If no personal representative has been appointed, it maybe appropriate to appoint a curator to serve to administerthe Estate. § 733.501, Fla. Stat. (2011).

Considerations:Considerations:Do you want an independent curator? Corporate orattorneyShould the competing clients serve as co-curators?

Minimize fees and costs?More control over administrationCo-curators must agree by majority, so it could slowdown the estate administration if the parties do not getalong.

Can I protect the assets at issue duringpendency of will contest?

Wise v. Schmidek, 649 So. 2d 336, 337 (Fla. 3d DCA 1995)holds that probate court has inherent jurisdiction topreserve assets for ultimate beneficiaries.

Wise court granted temporary injunction freezing probateassets pending outcome of proceeding.

Is summary judgment proper for undue influence case? Generally, No

“‘A summary judgment cannot be entered in favor of one who has theburden of overcoming the presumption of undue influence for suchproceeding does not afford the contesting party the right of crossexamination and an opportunity to present rebuttal testimony.’ ” RBCMinistries v. Tompkins, 974 So.2d 569, 573 (Fla. 2d DCA 2008).Ministries v. Tompkins, 974 So.2d 569, 573 (Fla. 2d DCA 2008).

Dobbs v. Doblitz, 425 So.2d 1207 (Fla. 4th DCA 1983)(noting conflictingevidence and reversing order of summary judgment on issues of undueinfluence and incapacity); also see Bryant v. Small, 236 So.2d 150 (Fla. 3dDCA 1970)(Fraud and undue influence are not proper subjects ofsummary judgment).

In re Knight's Estate, 108 So.2d 629 (Fla. 1st DCA 1959)(Where a confidential relationship existed betweentestator and his brother, and brother actively participated in the preparation and execution of testator'swill, and was a principal beneficiary thereunder, trial court erred, in a will contest, in entering asummary judgment sustaining will as to such brother).

Do I get a jury trial? No, generally contested probateproceedings are non-jury

Do the rules of evidence, apply? Yes, but… Some judges are liberal with the rules in non-jury trialsMay want to ask around about the judge trying your caseRemember the Dead Man’s statute is repealed (all

Unique burdens of proofUndue InfluenceIf Carpenter factors are present burden will should shiftto proponent.Section 733.107(2), Florida Statutes (2011), “[t]hepresumption of undue influence implements publicpolicy against abuse of fiduciary or confidentialrelationships and is therefore a presumption shifting theburden of proof under ss. 90.301-90.304.”

Remember the Dead Man’s statute is repealed (allcommunications with Decedent come in)

Florida Probate Rule 5.275 Is self-proving affidavit sufficient? Maybe

New revision to probate code, effective in 2010 Addresses hearsay issue when attesting witnesses cannot be located

and/or are deceased

Will proponent has initial burden of proving valid execution

and/or are deceased

Section 733.107(1), Florida Statutes (2011),

“[I]n all proceedings contesting the validity of a will, the burden shall be upon theproponent of the will to establish prima facie its formal execution and attestation. Aself-proving affidavit executed in accordance with s. 732.503 or an oath of anattesting witness executed as required in s. 733.201(2) is admissible and establishesprima facie the formal execution and attestation of the will. Thereafter, thecontestant shall have the burden of establishing the grounds on which the probate of

the will is opposed or revocation is sought.”

Other considerationsFlexibility in fee arrangements?Obtaining and maintaining litigation advantageAttorney fee recovery: 733.6171 (attorney for PR without court order),733.106 (attorney services to estate), 733.106 (apportionment againstshares)shares)

What if probate is revoked, are fees recoverable? A personal representative who is found to have procured a will through undue

influence is not entitled to be awarded attorney fees and costs from a decedent’sestate. Wolf v. Ahlman, 475 So.2d 1337 (Fla. 3d DCA 1985). Must establish good faith for recovery: “[A] person nominated as personal

representative . . . if in good faith justified in offering the will in due form forprobate, shall receive costs and attorney's fees from the estate even thoughprobate is denied or revoked.” § 733.106, Fla. Stat. (2011).

Settlement: section 733.815, Florida Statutes (2011), private contractsamong interested persons.

Clark Skatoff PA2925 PGA Blvd. Suite 103

Palm Beach Gardens, Florida 33410Palm Beach Gardens, Florida 33410www.clarkskatoff.com

(561) 842-4868