PROBATE CORNER
PROBATE CORNER
The “ Dutiful Child ” Defense
DAVID M . GARTEN
There is a presumption of undue influence when the undue influencer : ( 1 ) occupies a confidential relationship with the decedent ; ( 2 ) is a substantial beneficiary under the will ; and ( 3 ) was active in procuring the will . See In re Estate of Carpenter , 253 So . 2d 697 ( Fla . 1971 ). Based on the following line of cases , the “ Dutiful Child ” defense is one more issue to consider when litigating undue influence .
In Carter v . Carter , 526 So . 2d 141 ( Fla . 3d DCA 1988 ), the decedent left her estate in equal shares to her three sons . The mother ’ s codicil eliminated the one-third share to her son Carl which was divided equally between Carl , his ex-wife , and their four children . After their father ' s death , James , who was named personal representative of his father ' s estate , came to Miami from his home in Jacksonville to handle the probate of his estate . By that time , James had assumed management of the family business affairs due to his parents ' advancing years . They both had come to look to him for assistance . Not surprisingly , he asked his mother her wishes in regard to any changes she wanted made in her will . By then , eight years had passed and the trauma and disappointment caused by the divorce had had time to subside . He told her that shortly before his death , his father had indicated a compelling need to change his will back to its original form but that because he died suddenly , had not been able . James testified that he discussed the subject with his mother because he felt it was unfinished business which his father would have wanted him to take care of . His mother then told him to change her will accordingly . Upon returning to Jacksonville , James had his attorney draw the will up following his mother ' s directions . He then returned it to her in Miami where they went over it . He left it at her house for her to consider further . Carl , who lived in Dade County ,
some days later took his mother to the office of an attorney near her home where she signed the will in the presence of disinterested witnesses . The new will returned to the scheme of the original will . After their mother ’ s death , Carl ’ s exwife and one of his children petitioned for revocation of the new will based upon undue influence allegedly exercised by Carl and James . The appellate court , in reversing the trial court ’ s finding of undue influence , reasoned in part that “[ w ] hen viewed in this context it was quite natural , and certainly not intrusive , for James to discuss with his mother any changes she might desire in her will . If an adult child , in James ' s position , cannot talk to his parent about this , then we have finally demolished the family ties of love and natural affection .” “ Once the familial situation has been brought into proper focus , it is clear that the actions of James and Carl in executing the will were " perfunctory physical activities " rather than active procurement . [ citations omitted ] Theirs were the acts of dutiful sons who helped their mother draw up her will and execute it . She was aging and needed helpful information and even advice . Her sons were shown to maintain constant contact with their mother . James handled her financial affairs ; Carl made repairs around her home . Both saw that her physical needs were met .”
In Estate of Kester v . Rocco , 117 So . 3d 1196 ( Fla . 1st DCA 2013 ), the decedent was survived by her three daughters . One daughter , Glenna , was personal representative . Glenna ’ s sisters accused her of exercising undue influence over their mother and improperly taking possession of her three bank accounts . The appellate court , in reversing the trial court ’ s finding of undue influence , reasoned in part that the “ evidence that Glenna had a close relationship with her mother was insufficient to infer any undue influence . The testimony established that the other heirs also had close relationships with Mrs . Kester and assisted her with various tasks and transportation whenever needed . Evidence merely that a parent and an adult child had a close relationship and that the younger person often assisted the parent with tasks is not enough to show undue influence . Estate of Brock , 692 So . 2d at 911 . Where communications and assistance are consistent with a " dutiful " adult child towards an aging parent , there is no presumption of undue influence . Carter v . Carter , 526 So . 2d 141 , 142-43 ( Fla . 3d DCA 1988 ). Ultimately , "[ i ] f an adult child . . . cannot talk to his parent . . . then we have finally demolished the family ties of love and natural affection ." “ Likewise , the evidence of Glenna ' s active procurement of Mrs . Kester ' s designations of ownership and beneficiaries on the accounts was insufficient to establish the second indicator of undue influence . The testimony was unrefuted that Glenna was not present on any occasion when Mrs . Kester created or changed the financial account ownership or beneficiary list . There was no evidence that Glenna gave her mother instructions regarding any account changes , that Glenna alerted any bank employees prior to her mother ' s transactions , or otherwise actively participated in the account designations . In fact , the dates Mrs . Kester named Glenna as a joint account holder or POD beneficiary are not clear from the record and the signature cards and POD designation ( s ) are not in the record . Mrs . Kester ' s statement to a bank employee to the effect that Glenna would " take care of everything " did not establish any conditions on Mrs . Kester ' s designations or show that Mrs . Kester did not intend her actions on the accounts as written .”
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PBCBA BAR BULLETIN 15