Will Contests

Common Mistakes in Florida Wills

February 22, 2014 | by Chepenik Trushin LLP

Aside from the well-known concerns with do-it-yourself wills, there are a number of common mistakes people who seek only ancillary professional advice may fall victim to when devising their wills. Of the most frequent mistakes, four in particular are perhaps the least likely for a layman to anticipate. Each of these four mistakes may potentially lead to an outcome that is contrary to the wishes of the testator with regard to distribution of the assets of their estate, and may result in the testator’s loved ones receiving little or no inheritance.
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The Consequences of Do-It-Yourself Wills

February 6, 2014 | by Chepenik Trushin LLP

A recent Florida case, In re Estate of Aldrich, demonstrated the potential consequences of using so-called “Do-It-Yourself” legal forms as a substitute for professional legal advice. The case was centered on the will of Ann Dunn Aldrich, which had been written by Mrs. Aldrich with the assistance of an “E-Z Legal form” template. In her will, Mrs. Aldrich itemized the assets of her estate and devised them to her sister. Should her sister predecease her, Mrs. Aldrich stipulated that the assets of her estate go to her husband, Mr. Aldrich. However, Mrs. Aldrich failed to include a residuary clause, which would have detailed her intentions regarding assets not specifically mentioned.
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Avoiding the Claim of Undue Influence in Florida Probate Proceedings

January 22, 2014 | by Chepenik Trushin LLP

A common argument raised by those challenging the validity of a will is that a beneficiary of the will exercised undue influence over the testator. If this is proven in probate proceedings, anything that is received by that beneficiary as a result of his or her undue influence will be considered void and returned back into the testator’s estate. Asserting a claim of undue influence can have many affects, including the delay of a will’s execution, the disruption of a will’s intentions, and increased costs related to the probate proceedings.
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Should Pre-Death Will Contests Be Permitted?

July 26, 2013 | by Bart Chepenik

Floridians are unable to contest the validity of a will before the testator’s death. See Fla. Stat. § 732.518. There are several good reasons for this rule, and a majority of states prohibit such litigation. The primary reason for not allowing pre-death will contests is that a will is revocable-the litigation could become meaningless if the testator changes how he or she wants to dispose of the property after death, and the cost of legal fees and judicial resources would be wasted. Another reason for prohibiting such litigation is that many testators keep their wills confidential before their death. Four states have expressly allowed pre-death will contests (Alaska, Arkansas, North Dakota, and Ohio), and three of those states require the testator to name all beneficiaries named in the will in the suit. While such a requirement is logical in that it binds all of the beneficiaries to the judgment, it also forces the testator to reveal who is, and who is not, named in the will. Finally, if a beneficiary named in the will knows that there may be a reason that the will is invalid, such as a lack of mental capacity on the part of the testator, he or she may not raise that issue in a declaratory action in order to protect the inheritance.
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A Lesson from Sir Peter Ustinov: The Importance of Maintaining a Current Will

March 27, 2013 | by Bart Chepenik

Sir Peter Ustinov, a famous English actor, columnist, and UNICEF Ambassador, passed away on March 28, 2004. Despite the fact that he died nearly 10 years ago, his estate still has not been settled. Sir Ustinov had been married three times, and had four children at the time of his death. He was estimated to be worth tens of millions of dollars. Sir Ustinov’s most recent will at the time of his death was 36 years old and written in pencil. Because the will was so outdated, the Swiss court that has jurisdiction over Sir Ustinov’s estate ruled that he died intestate. As a result, under Swiss law, his estate would pass to his widow. Since the decision that Sir Ustinov died intestate, there has been a battle over his estate. Specifically, Sir Ustinov’s son, (who was the heavily favored heir in the hand-written will that was rejected by the Swiss court), contends that Sir Ustinov set up trusts that held most of his assets (and whose whereabouts are known only by two retired Swiss lawyers) that should pass to Sir Ustinov’s children. This battle has resulted in the parties amassing a large bill for attorneys’ fees and is suspected to have eaten away most of Sir Ustinov’s once vast estate. Sir Ustinov’s son-in-law has stated that due to the costs of the litigation, there is little left to fight over. The son who is pushing the litigation recently admitted that he is nearing bankruptcy as a result of the legal fees he has incurred. Even an English High Court Judge has stated that she is appalled by the money that the family has spent fighting over the estate.
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What Happens When Nobody Can Find Your Will

February 21, 2013 | by Bart Chepenik

Even when a person creates a will, it is possible that nobody will be able to find that will when the testator passes away. Fortunately, Florida law allows for the contents of a will or a codicil (an addition, supplement, or amendment to a will) to be proven even if the will cannot be found. Fla. Stat. § 733.207 provides that the contents of a will that was lost or destroyed can be proven if either: (1) two disinterested witnesses testify as to the contents of the will, or (2) a correct copy of the will is provided and one disinterested witness testifies as to the contents of the will.
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Deathbed Marriages

January 9, 2013 | by Bart Chepenik

It is well known that many wealthy individuals come to sunny Florida to retire. Unfortunately, Florida also has its fair share of people looking to take advantage of Florida’s wealthy, elderly population. For example, it is not uncommon for a younger man or woman to marry a high net worth individual whose life expectancy is nearing its end. This type of marriage is commonly referred to as a “deathbed marriage.” In Florida, people used to be able to enter into valid marriages while one spouse was literally on their deathbed with only minutes to live. Luckily, a change in the law has opened the door to challenge this type of marriage.

Deathbed marriages are a common way for unscrupulous individuals to take advantage of the elderly. The younger spouses of the newly deceased have the right to the decedent’s homestead and anywhere from thirty percent to one hundred percent of the decedent’s estate under the Florida elective share statute, or intestacy, statute. It used to be that heirs could not challenge the validity of deathbed marriages. Under Florida law, marriages even minutes before death were valid and other potential heirs had no standing to challenge them. However, Florida Statute Section 732.805 drastically changed this. Most notably, the statute gives a decedent’s heirs standing to challenge a deathbed marriage.
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Tortious Interference with Inheritance

November 21, 2012 | by Bart Chepenik

It is a classic scenario – the evil step-mother taking everything when her husband dies even though his children were expecting an inheritance. What do you do if someone swoops your inheritance, or your expectation of an inheritance, out from under you? Florida recognizes a cause of action for tortious interference with an inheritance or expectancy of such. See In re Estate of Hatten, 880 So. 2d 1271 (Fla. 3rd DCA 2004). This means that if an inheritance or the expectancy of an inheritance is diverted, destroyed, or something of the like by a third party, there is a cause of action by which the person who did not receive the expected inheritance may be compensated.

Tortious interference with inheritance is defined as, “[o]ne who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.” Restatement (Second) of Torts § 774B. There can also be many related causes of action to a tortuous interference with inheritance claim, such as breach of contract, undue influence, and unjust enrichment. A person who has been the victim of such wrongful conduct may bring an action for a constructive trust or damages.
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Dependent Relative Revocation

September 30, 2012 | by Bart Chepenik

As people progress through different stages of their lives, their beliefs and objectives sometimes fluctuate and change. One situation in which an individual may change his or her mind is when writing a will. People often change their minds about whom to devise or bequest their property. But, what causes people to change their minds? What if someone revokes their will based on a mistaken assumption of law or fact? Is the new will effective? Does the old will get revived if the new will is ineffective?

Over the years, courts have wrestled with such questions and, resultantly, have come up with the doctrine of dependent relative revocation (“DRR”). Essentially, the courts have decided that if a testator claims to revoke his will, and he or she does so based on a mistaken assumption of law or fact, the revocation is invalid if the testator would not have revoked the initial will had he known the truth. Once it is clear to the court that the revocation of the prior will was based upon the validity of the new will, the court will apply DRR. The doctrine creates a “rebuttable presumption that the testator would have preferred to revive his earlier . . . bequests rather than let the property go by intestacy.” In re Estate of Pratt, 88 So. 2d 499, 501 (Fla. 1956).
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Damages in Conversion and Tortious Interference with Inheritance Cases: Proving ‘Millions’ Not Enough

September 4, 2012 | by Bart Chepenik

The law provides remedies for the potential beneficiaries of a decedent who has his or her last wishes interfered with prior to death. However, proving a case, even where liability is clear, can be troublesome for a lawyer unfamiliar with probate law. Under Florida law, a prima facie case for both conversion and tortious interference with expected inheritance requires the plaintiff(s) to prove damages in order for there to be a recovery.

In a recent Florida Third District Court of Appeal case, Saewitz v. Saewitz, 79 So. 3d 831 (Fla. 3d DCA 2012), two daughters brought suit against their stepmother for the manipulative acts she committed during their father’s dying days. At the trial level, the daughters called several witnesses to prove damages, including their father’s accountant. During the accountant’s testimony, he stated that the value of the assets that the stepmother interfered with was “over a million dollars” and “in the millions.” Two other witnesses, including the stepmother, indicated that value of the assets was over a million dollars. Despite multiple witnesses giving testimony about the value of the assets in question, none were able to give a better estimate than “over a million dollars.”

The daughters argued that they were unable to ascertain a more specific value of the assets because they never received, even though they had requested, documents related to the value of the decedent’s assets. The Third DCA stated that this was the fault of the counsel of the daughters for acquiescing to the non-production of documents. The appellate court noted that there are legal avenues, such as a motion to compel, that are in place to force production of these documents. Judge Shepherd, author the Third DCA opinion, also noted that the daughters never subpoenaed the decedent’s accountant for records that would show the value of the assets. Finally, the court noted that the daughters were aware of each asset, and thus, could have retained experts to calculate the value of each asset. The court went on to state that the daughters’ counsel was not the “but for” cause of the daughters’ failure to present a prima facie case to the jury, even if the lawyers violated some legal or ethical obligation to their clients.
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