Articles Posted in Will Contests

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.

Florida Appeals Court Strikes Down Probate Creditor Claims From Child For Child Support Arrearages

On May 11, 2016, the Fourth District Court of Appeal issued its decision in Davis v. Hengen regarding creditor claims for child support arrearages against a decedent’s estate, when the decedent dies with unpaid child support obligations.

Upon the dissolution of their marriage, Clifford Davis and his then wife entered into a marital and property settlement agreement. According to the agreement, Clifford was obligated to pay monthly child support to his ex-wife to support their daughter, Deborah. When the father died, he died intestate. At the time of his death, the father had outstanding child support payments due. Deborah and Clifford’s current wife, Acaia, were appointed co-personal representatives of Clifford’s estate.

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.

The Hunt for Tom Clancy’s Estate Comes to an End

Popular author Tom Clancy wrote many iconic novels, and the story of his estate battle sounds like it comes straight out of a book. The author, who died at the age of 66 of heart failure, left an estate valued at $82 million. This $82 million estate includes an ownership interest in the Baltimore Orioles baseball team worth $65 million, a working World War II tank, a mansion on Chesapeake Bay and over $10 million in business interests from his novels and movie adaptations.

According to the original will, Clancy left his Chesapeake Bay home and other properties, along with any of his joint bank or investment accounts to his wife Alexandra. Clancy also left a portion of the residue of the estate to the Hopkin’s Wilmer Eye Institute, which he had previously given a $2 million donation in 2005. The rest of his estate was to be divided between a series of trusts. The 2007 will originally provided for three trusts and divided the rest of the estate as follows: one-third for Alexandra, one third for Alexandra to use while she was alive and then passing to their daughter, and one-third to be divided among his four children from his previous marriage.

E-Filing in Probate Court – It’s Mandatory!

As a Creditor to an estate, you must be wary of your time limits to file a statement of claim against an estate. Section 733.702(1), Florida Statutes (2012) states that creditors must file any statements of claim against a decedent’s estate within three months of the first publication date of the notice to creditors or within the thirty days of being served with notice, whichever is later. If you do not file the claim within the time frame, the claim is time barred, unless the court grants an extension. § 733.702(3), Fla. Stat. (2012). The only available grounds for an extension are fraud, estoppel, or insufficient notice of the claims period. Id. Since April 1, 2013, electronic filing of court documents has been mandatory in civil, probate, small claims, and family divisions of Florida circuit courts. In re Amendments to Fla. Rules of Civil Procedure, 102 So.3d 541, 461 (Fla. 2012). While Rule 2.525(d) of the Florida Rules of Judicial Administration does provide exceptions to the electronic filing requirement, those exceptions are only available in specific circumstances. But, what happens if you mail a paper copy to the clerk, which is received within the applicable time period, but you do not electronically file a copy until after the time period has passed? According to the Fourth District Court of Appeal, you are out of luck and will be barred.

In United Bank v. Estate of Edward G. Frazee, Edward G. Frazee passed away on December 24, 2012. A petition for administration was filed and the decedent’s last will and testament was admitted to probate. A notice to creditors was published on February 14, 2013. On April 11, 2013, United Bank (the “Bank”) was served with a copy of the notice to creditors. Under § 733.702(1), the Bank’s deadline to file a statement of claim was May 15, 2013.  Through an out of state attorney licensed to practice in Florida, the Bank mailed the claims on May 10, 2013, but the Clerk did not receive the paper claims until May 14, 2015. On May 23, 2013, the Clerk notified the Bank that the claim needed to be filed electronically, and the Bank submitted the claims through the e-portal on the same day.

The Shifting Landscape of Guardianship Law: Three Consecutive Years of Changes

(Published in The Florida Bar Journal, September 2016) 

Members of The Florida Bar Real Property, Probate and Trust Law Section’s (RPPTL) Guardianship, Power of Attorney and Advance Directives Committee are keenly aware that there have been major changes to Florida’s guardianship laws in the last several years. The political climate of the past few years has been decidedly against guardianships and, in particular, professional guardians, due to perceived abuses by them. The current political climate is due in part to hearings held before the Florida Legislature during the 2014 session in which organized members of the public testified about the horrors of guardianships. While some of the horror stories came from disgruntled family members unhappy with the results of their particular guardianship litigation, others made legitimate points regarding the need to improve the system.

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.

Florida Limitation on Convicted Felons Serving as Personal Representatives in Probate Administration

When contemplating preparing a last will and testament, there are many options that have to be considered before drafting can begin. One important consideration is deciding who to nominate as the personal representative of your estate.

A personal representative is a fiduciary who is appointed by the court to administer the decedent’s estate.. Depending on the jurisdiction, a personal representative may also be known or referred to as an executor, administrator, or other name. Florida Statute § 733.301 outlines who has preference in appointment as the personal representative in various scenarios. When the decedent dies testate, meaning with a last will and testament, preference is given to the personal representative nominated in the will.  If the nominated personal representative is unwilling, unable or unfit to serve, any successor nominated in the will has preference.    In the event all nominated personal representatives are unwilling, unable or unfit to serve, preference goes to the  person selected by a majority in interest of the persons entitled to the estate.  If there is no person selected by a majority, preference goes to a beneficiary under the will, and if more than one beneficiary applies, the court may select the person best qualified.

Many people utilize a will, a trust, or some other standard form of estate planning to ensure that their loved ones are provided for upon their death.  However, in Florida, individuals have an additional estate planning tool: adult adoptions.  Under Florida Statute § 63.042, a husband and wife, an unmarried adult, or a married person without the other spouse joining as a petitioner may adopt an adult.  The statute does provide certain limitations, for example, if a married person wants to adopt without the other spouse joining as a petitioner, then the non-joining spouse must consent to the adoption.  However, a court can excuse this requirement.  Generally, Florida’s adoption statute is less restrictive than similar statutes in other states because it does not impose the common age difference requirement.  Under this requirement, there must be a certain age difference between the party being adopted and the party wishing to adopt in order for the adoption to be legal.  This means that in Florida an adult is able to adopt another adult regardless of age.

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