Articles Posted in Testamentary Capacity

Elder Abuse and Undue Influence Awareness

Did you commemorate World Elder Abuse Awareness Day? June 15, 2017 marked the twelfth annual World Elder Abuse Awareness Day, or WEAAD. Elder abuse, especially elder financial exploitation, has been called the crime of the 21st century. However, based on national surveys, elder abuse remains one of the least investigated and least addressed types of violence in national action plans. Experts predict that by the year 2025, the global population of those aged 60 years and older will more than double, from 542 million in 1995 to about 1.2 billion. As the global elderly population grows, so does the risk of financial abuse.

To raise awareness around the world and promote a better understanding of abuse of older adults, the International Network for the Prevention of Elder Abuse and the World Health Organization at the United Nations launched WEAAD in 2006. WEAAD’s theme this year focused on preventing financial exploitation of the elderly in the context of human rights. The 2017 WEAAD also stressed the need for countries to take concrete action and develop strategies addressing financial exploitation for older adults.

Legal Capacity and Estate Planning- How to Help Safeguard a Will from Future Litigation

When a loved one grows older, their caretakers’ ever growing to-do list can become overwhelming. After dealing with the basic, everyday needs of an aging family member, it may sometimes be easy to overlook the fact that your loved one does not have a valid will.  By not addressing this issue, the task of handling final affairs and estate distribution after their death becomes increasingly more difficult. If you are responsible for someone who is at risk for developing Alzheimer’s, dementia, or any other disease that can affect their mental capacity, it is important that you consult with an estate planning lawyer who can ensure that a proper will is drafted in accordance with the laws of the state of Florida.

Florida courts have held that a will can be properly admitted to probate if the testator was competent at the time the will was executed.  Jervis v. Tucker, 82 So.3d 126 (FL 4th DCA 2002).  A testator will be found to have been competent if they possessed the ability to “mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.” American Red Cross v. Estate of Haynsworth, 708 So.2d 602, 605 (FL 3rd DCA 1998). Florida courts will apply these standards and also evaluate the facts specific to a particular case in order to determine if a testator was of “sound mind” when they created the will. Estate planning lawyers play an important role in this process and have the responsibility of ensuring that the testator is legally competent at the time the will is created.

Criminalizing Exploitation of the Elderly and Its Effects on Estate Planning

For estate planning attorneys, the concept of criminal punishment is not the first thought when asked: “What could be the outcome?” In a typical case, the worst that happens is the client losses their share of an inheritance or perhaps ends up paying more taxes on the estate.  However, Fla. Stat. §825.103 makes exploitation of an elderly person or disabled adult a criminal offense.  But what is exploitation under the statute?  A person is guilty of exploitation if they knowingly obtain or use, or endeavor to obtain or use, an elderly person’s funds, assets, or property with the intent to temporarily or permanently deprive the elderly person of the use of the funds, assets, or property.  The person must be a person who stands in a position of trust and confidence with the elderly individual, or has a business relationship with the elderly individual.  A Fourth District Court of Appeal case shows the slippery slope of how a situation that should be dealt with by a will contest can turn into a criminal trial.

In Cynthia Franke v. State, Cynthia Franke’s appealed her conviction for financial exploitation of the elderly.  Franke and Mary Teris had been friends for almost thirty years and met when Teris became a client of the firm where Franke was a stockbroker.  Franke and Teris became very close over the years and developed a mother/daughter type of relationship.  Franke helped Teris, including driving her wherever she needed to go and helping with Teris’ two disabled adult sons.

Possibility of the Effect of Marijuana on Estate Planning

In the 2014 legislative session, the Florida Legislature passed the Compassionate Medical Cannabis Act of 2014, which authorizes certain physicians to prescribe low-THC cannabis for use by specified patients.  Nearly two years later, due to legal challenges, Floridians still have not been able to receive this medical treatment.  However, because the law may become effective in the near future, certain questions must be addressed, particularly questions regarding the intersection of marijuana use and testamentary capacity.

One of the legal prerequisites for making a will in Florida is that the maker (the testator) must have testamentary capacity, that is, a sound mind.  Insofar as lack of testamentary capacity is one of the grounds frequently used to challenge the making and execution of a last will and testament, the testator’s testamentary capacity may be called into question if he or she had been prescribed medical marijuana and had, in fact, taken medical marijuana during any aspect of the preparation or execution of the subject will.

B.B. King Estate Fight: One Year Later and No End in Sight

Legendary blues musician B.B. King passed away on May 14, 2015 due to congestive heart failure at the age of 89.  In a will created in 2007, King named his longtime business manager, Laverne Toney, as the executor/personal representative of his will.  The 2007 will, thus, puts Toney solely in charge of administering King’s assets, his property, and his trust.  In June 2015, a Las Vegas judge confirmed Toney’s appointment as sole executor, and rejected efforts to contest the will made by four of Mr. King’s children.

Although B.B. King did not have children from either of his two marriages, he nevertheless claimed to have 15 children with 15 different women over the course of his lifetime.  Confusing the situation still further, King’s doctors determined in the 1980’s that due to King’s low sperm count, he was not able to conceive children.  However, King never disputed paternity, and claimed to be the father of all 15 children, 11 of whom are still alive and have been fighting Toney over the estate.