By James W. Mallonee
There are occasions when clients come to the office to discuss their Will or Trust plans and in doing so include one of the children to accompany them. In other occasions, the client will call the office to discuss their Will or Trust and put the conversation on speaker phone for the purposes of having another listen in. These types of situations are disasters just waiting to happen, especially if the beneficiary is one of the children who accompanied the client.
In many cases the client is under the impression that the assisting child, neighbor, friend or caretaker is there for support to help interpret what is being said. These types of assistances will almost assuredly result in a Will or Trust contest which will ultimately tear a family apart and cost tens of thousands of dollars to resolve.
Its not surprising that a lawyer who is consulting with the Testator, will independently meet with the Testator to cut through the possibility of undue influence and determine as best the lawyer can the cognitive capacity of the client. Traditionally, any additional person who accompanies the Testator is removed and placed in the waiting area away from the attorney – client consultation.
That’s what did not happen in 1971, where a case was heard by the Florida Supreme Court involving undue influence. In that case the Court determined that undue influence had occurred. As part of the court’s analysis, it provided some direction when determining if there is an active procurement on the part of another in gaining a favorable position in the preparation of a Will or Trust instrument. The case is known as the “Carpenter” case.
The court pointed out some initial factors to look for when investigating if undue influence may have occurred by examining whether there exists a confidential relationship between the Testator and the person who gains an advantage. Confidential relationships consist of sharing secrets, depending on one another for getting things completed as well as long term relationships involving love and affection for each other. Ordinarily, a confidential relationship is the first thing lawyers will look for when accepting retainment to initiate a Will or Trust contest.
The other acts that are examined is whether the confidant took advantage of the relationship by:
A. Being present during the execution of the Will or Trust;
B. Was present during a consult and discussed with the testator the contents of the Will or Trust (e.g. the selection of who should be considered as a beneficiary and what they get);
C. The confidant (who may be one of the beneficiaries) suggests an attorney to work with and worse, makes the appointment, and, takes the Testator to the appointment;
D. While at the attorney’s office, the confidant speaks for the Testator or worse makes corrections to what the Testator says all under the guise of refreshing the Testator’s memory;
E. The confidant assists in securing witnesses for the execution of the Testator’s Will or Trust. This typically occurs if the Will is obtained from an on-line source and executed at the Testator’s home instead of an Attorney’s office;
F. The confidant, following the execution of the Will or Trust takes possession of the document for “safe keeping.”
G. The confidant begins to isolate the Testator from receiving calls and prevents visits from family or friends (which is almost always a giveaway to undue influence);
H. Changes made that historically are out of character by the Testator. Examples would be where the Testator gave the estate evenly between 4 children, which had been in place for the past 10 years, then suddenly two of the children are reduced to 10% or removed entirely;
The above factors are just that, factors that will be examined should there be a Will or Trust contest. Many of them can be overcome because of the natural interaction between the Testator and their everyday communication with others (e.g. daily calls from one of the children checking on the parent’s safety and health). The biggest assistance will come from the attorney who consulted with the Testator and drafted the documents. His or her testimony regarding who was in the room and the capacity of the Testator will almost assure a positive or negative outcome to any Will or Trust contest.
Other factors a court will rely on to extinguish an undue influence claim is the ability of the Testator to live independently with an ability to manage their own affairs. For example, did the Testator change other documents or financial records without the assistance of another and were those changes favorable or not favorable to such confidant.
The tough issue to overcome is getting the testimony of the Testator, who by this time is more likely deceased and can’t speak for themselves. As a result, the need to review historical records regarding health, cognitive capacity, communications with friends and family is strong evidence to show undue influence as well as exploitation of an elderly person.
The other difficulty is the cost and time to assert an undue influence case. These types of cases can easily run in excess of many thousands of dollars and take close to 2 years to complete. While going through such litigation, it can cause animosity among family and friends. However, at the end of the day, a decision will be made as to whether an individual took advantage of another and getting such advantage resolved.
Thus, if you are planning to revise or have a new Will or Trust prepared for you, do it alone with the assistance of an attorney of your choice. Do not have an assistant share in the consult experience with you. If you believe a family member of yours has been or is presently the victim of isolation or manipulation, seek out an attorney and have a discussion about the Carpenter factors.
James W. Mallonee (Jim Mallonee) is a graduate with a B.A. degree from the University of South Florida and a Master of Science degree from Rollins College in Winter Park, Florida. He obtained his Juris Doctorate from the University of the Pacific, McGeorge School of Law in Sacramento, California. Prior to returning to Florida to practice law, Mr. Mallonee was employed by Intel Corporation for 22 years in such locations as New Jersey, Florida and California.
In addition to being a member of the Florida Bar since 2003, Mr. Mallonee serves on the Charlotte Community Foundation Committee for asset allocation and teaches Business Law at State College of Florida. Mr. Mallonee is also on the Board of Directors for the Military Heritage Museum located in Charlotte County, Florida.
His firm practices law in the following areas: Probate, Wills & Trusts, Guardianships, and Litigation in the areas of Real Estate, Guardianships and Estates. The firm has two locations in Venice and Port Charlotte, Florida.
James W. Mallonee, P.A.
946 Tamiami Trail, #206
Port Charlotte, FL 33953
Facsimile (941) 206-2224
871 Venetia Bay Blvd., #225
Venice, FL 34285
This article is intended for informational use only and is not for purposes of providing legal advice or association of a lawyer – client relationship.