IS FRIEND ENTITLED TO PROPERTY AS A GIFT

By James W. Mallonee

A recent case involved an individual who became friendly with an elderly person. The elderly person had all their faculties about them but was unable to walk or drive themselves due to physical problems limiting their mobility. The individual (named Billy) made himself available to assist the elderly person (we’ll call the elderly person “Sam”) who was not capable of performing all of the daily living events in their life. In essence, Sam’s ability to manage his daily affairs was intact with the exception of mobility. Billy had only known Sam for about 2 years. Billy provided Sam with mobility such as a wheelchair pushing, but Sam managed all his money and appointments. Billy simply suppled the mobility.

Sam has no family he could depend on other than a sister with whom Sam has little to no contact. Sam’s health is beginning to deteriorate, thus his reliance on Billy is beginning to become more pronounced. Sam decided that he needed to have a Will prepared which would give him the ability to transfer his estate to whomever he wished. In this case, his election was to pass it all to Billy. To accomplish this, Billy obtained a software program that would prepare a Will for Sam according to his wishes. Sam filled in the necessary information to the software program (without Billy’s knowledge) giving all of his estate to Billy. Billy simply purchased the program that Sam used.

The Will was printed and signed with all the pomp and circumstance required in the State of Florida. Sam obtained the witnesses and notary for signing his Will. Billy had no input as to the information entered into the program, he simply provided the application used by Sam. Three weeks later, Sam dies and the Will is filed with the Clerk of Court according to the laws of the State of Florida. The Will gave Sam’s entire estate to Billy (which was quite substantial) and nothing to Sam’s sister. There was no explanation in the Will or any other document as to why this occurred. Billy’s sister (Maryann) was not happy with the turn of events and sued Billy for undue influence and to have the Will thrown out, thus giving her 100 percent of Sam’s estate via Florida’s intestate laws and nothing to Billy.

Maryann’s claim is that Billy took advantage (undue influence) of Sam during his remaining life and convinced him to give his entire estate to him. Of course, Billy claims that no such thing occurred and that Sam disliked his sister and refused to give anything to her. Billy’s claim is supported by friends who knew Sam and his dislike for his sister. The problem appears to be the unnatural distribution of Sam’s assets to Billy and the preparation of the Will which was essentially made possible by Billy.

How could Sam have avoided his sister’s claim of undue influence? The simple solution is for Billy to have taken Sam to an attorney and have his Will drawn up by the attorney. This would have given the attorney the ability to testify as to the preparation and desires contained within Sam’s Will. Although the courts are available to mete out a solution, the courts also look to a solution that will benefit everyone unless the evidence indicates that it truly is one sided.

Although Billy’s side of the case has some problems, Maryann also has some issues with her case due to Sam’s well known dislike for his sister. More importantly, Maryann’s history of visiting (on a regular basis) Sam is non-existent leaving one to speculate that she was only interested in his estate and not her familial affection for her brother.

The major issue here will be resolved by the courts who (historically speaking) will likely find favorably with the familial argument as opposed to the short-term interaction that Sam had with Billy. The message contained in this article is to avoid being associated with the preparation (of any kind) of a testamentary document by the person who will be the major beneficiary. Have that done by a third party (attorney) who has no financial gain to be derived from the death of the testator.

This article is intended for informational use only and is not for purposes of providing legal advice or association of a lawyer – client relationship.

LAW OFFICES OF
JAMES W. MALLONEE, P.A.
www.jameswmallonee.com