Challenging Transactions of a Decedent
When a person dies, there may be grounds to challenge actions taken by the decedent prior to death. These transactions can include the making of a will, the making of a gift, the making of a deed, and the making of a contract, such as a nuptial agreement. There are various grounds to challenge transactions, such as fraud and deception, coercion and duress, incompetence, overreaching, and undue influence. Other grounds to challenge transactions are based on the required formalities for executing the document: Whether a will was executed with the formalities required for a will;1 whether a deed was executed with the required formalities;2 and whether a nuptial agreement was executed in accordance with the formalities required for such an agreement.3 The subject of this article is challenging wills, gifts, deeds, and contracts on the grounds of incompetence and undue influence. The article will address the meaning and elements of these actions, various presumptions, the effect of a presumption, burden of proof, and standard of proof.
The proponent of a will has the initial burden to prove the will was executed in accordance with the required formalities.4 A person seeking enforcement of a contract has the initial burden to prove the existence of the contract.5 At that point, there is a presumption that the testator, the grantor of a deed, and the contracting party, respectively, were competent;6 the burden of proving incompetence or undue influence, or both, is on the contestant.7
Undue Influence
The Florida Supreme Court, in Peacock v. Dubois, 105 So. 321 (Fla. 1925), explained the meaning of undue influence and stated:
The rule seems to be well settled that undue influence justifying the setting aside of the will, deed, or other contract must be such as to dethrone the free agency of the person making it and rendering his act the product of the will of another instead his own. The character of the transaction, the mental condition of the person whose ace [sic] is in question, and the relationship of the parties concerned to each other are all elements that may be taken in consideration in applying the rule.8
The central idea of undue influence is that a second person has overcome the will of the acting party and the action taken is, in reality, the action of the second person, not the free and voluntary act of the acting party. Evil motives are not required. Rather, the focus is on whether the action is, in fact, the free and voluntary act of the acting party.9 However, mere affection, kindness, or attachment of a person to another may not, by itself, constitute undue influence.10
A factor that the courts frequently consider when evaluating whether a transaction is the result of undue influence is the mental state of the person.11 The weakened mental state of a person is a significant factor in many cases in which undue influence was found.12
The existence of undue influence can be proven through direct evidence of domination, such as in the case of In re Estate of Winslow, 147 So. 2d 613 (Fla. 2d DCA 1962).13 However, in many cases, it is impossible to determine the facts of a transaction because, when there is undue influence, often the only persons with knowledge of the facts are the decedent and the person who influenced the decedent.14 As a result, the courts recognize certain patterns of conduct, which give rise to a presumption of undue influence. The most common of these is the Carpenter presumption.
Presumptions
• Carpenter Presumption of Undue Influence — In the case of In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), the Florida Supreme Court addressed the issue of proving undue influence, set forth elements that give rise to a presumption of undue influence, and discussed the facts required to prove each element. The Carpenter presumption has three elements: 1) The influencing party was a substantial beneficiary of the transaction; 2) a confidential relationship existed between the influencing party and the acting party; and 3) the influencing party was active in procuring the transaction.15 As the Carpenter court acknowledged, subsequent decisions have found the existence of substantial beneficiary,16 confidential relationship,17 and active procurement,18 based upon a broad variety of circumstances.
The mental condition of the acting party is a factor that courts consider when evaluating whether there was undue influence. In Cripe v. Atlantic First National Bank of Daytona Beach, 422 So. 2d 820 (Fla. 1982), Joe Cripe and his wife lived in an apartment building belonging to Carrie Hare. She and he reached an agreement whereby he managed the apartment building for her. The relationship between Joe Cripe and Carrie Hare was described as follows:
[A] close and dependent relationship had developed between herself and Joe Cripe. There was evidence to show that after he had been managing her affairs for some time, she became dependent upon him for financial services and advice and that she placed her trust in him. A confidential relationship had developed….The condemnation proceeds were deposited in a joint account because Mr. Cripe asked Mrs. Hare to do so. Since there was a confidential relationship and active procurement of a financial benefit, a presumption of undue influence arose. This presumption placed upon the defendants the burden of providing a reasonable explanation of the gift.19
Concerning the condemnation proceeds, Joe Cripe explained he assisted Carrie Hare with the condemnation transaction, which is the reason she placed them in a joint account. However, he had done nothing more than routine administrative services, which he was already obligated to do as manager of the apartment complex. On the issue of active procurement, the court stated: “There was evidence, however, that Mrs. Hare’s mental condition had deteriorated and she had become totally dependent on the Cripes. Where there is such an inequality of mental strength, active procurement can be shown by evidence, as there was here, of a request or suggestion by the dominant party.”20
Carpenter involved a will contest. Subsequent court decisions have applied this presumption to other transactions. In Cripe, the Florida Supreme Court applied the Carpenter presumption to an inter vivos transaction consisting of a gift of a substantial sum of money.21
In Gorman v. Harrison, 559 So. 2d 643 (Fla. 3d DCA 1990), the Carpenter presumption was applied to a series of transactions involving preparation of various wills, a trust, a codicil to a will, a warranty deed, and a power of attorney. The instruments were declared void and the acts performed under the power of attorney were nullified.22
In Thomas for Fennell v. Lampkin, 470 So. 2d 37 (Fla. 5th DCA 1985), the Fifth District applied the Carpenter presumption to an action to rescind deeds and for an accounting of funds that had been spent. Fennell was a widow and lived alone. While she was on amiable terms with her sister (the grantee under the deeds in dispute), the sister visited her only once or twice a year. When Fennell began to deteriorate mentally, to the point she could no longer care for herself, the sister began to visit her on a frequent basis, and she obtained a power of attorney from Fennell, purportedly so she could pay Fennell’s bills. The sister was the more dominant and better educated of the two.
The sister contacted an attorney to prepare and supervise the execution of two deeds by Fennell, which transferred her real property to the sister. The sister was present when both deeds were executed. The sister also withdrew funds from Fennell’s bank accounts. Subsequently, Fennell was hospitalized due to injuries, and while there, her nephew visited and explained she no longer owned the house. Fennel expressed surprise, revoked the power of attorney in favor of the sister, and made a new power of attorney in favor of the nephew, who brought an action to rescind the transactions. The Fifth District held these facts were sufficient to establish a Carpenter presumption and stated:
We think this case is a classic situation in which the presumption of undue influence in the procurement of the deeds arose. A confidential relationship existed between Fennell and the defendant, and Fennell was clearly slipping mentally at the time of the conveyances. One deed, in fact, was signed by Fennell’s “X” because she was feeling so “shaky” that day. The defendant was also clearly the moving force behind procuring and executing the conveyances, as she obtained an attorney to draft the deeds and subsequently brought him to Fennell’s house in order to execute them.23
While the Carpenter presumption is the best known and most commonly cited presumption, it is not the only pattern of conduct that gives rise to a presumption of undue influence. There are pre- Carpenter decisions that deal with two other patterns of conduct that gave rise to a presumption of undue influence. The principal factor in one of these is an unexplained departure from a fixed intention. The second presumption is based on circumstances that are suspicious and for which there is no satisfactory explanation. The first will be referred to as the fixed intention presumption, and the second as the suspicious circumstances presumption.
• Fixed Intention Presumption — Two older cases hold a presumption of undue influence arises when there is an unexplained departure from a fixed, long-held intention, together with other circumstances. These cases have not been applied to the issue of undue influence in any recent decision, perhaps because of the availability of the Carpenter presumption. However, neither decision has been overturned.
Newman v. Smith, 82 So. 236 (Fla. 1919), involved a will contest on the bases of incompetence and undue influence. The decedent had one child, a daughter, was divorced from his first wife, and had remarried. He had a long-held intention to leave his estate in equal shares to his second wife and his daughter.
When quite advanced in age, the decedent was admitted to a hospital for treatment of the condition that eventually caused his death. After the first operation, which was not successful, he was in much pain, was seized with inordinate fear, and was taking strong medications. While in this condition, he made a new will, leaving everything to his second wife and nothing to the daughter. The decision of the trial court denying probate of the new will was upheld by the Florida Supreme Court. The court evaluated the significant change in the terms of the will: “That an entire change from former testamentary intentions is a strong circumstance to support a claim of undue influence is well supported by the authorities.”24 The decedent’s departure from his prior fixed intention, together with evidence of his acquiescent state of mind and the role his wife and her family played, resulted in a holding that the will was the result of undue influence. At that point, the wife was required to prove the will was not the result of undue influence, which she failed to do.
Watts v. Newport, 6 So. 2d 829 (Fla. 1942), involved a will challenge based on undue influence. The decedent, Letitia Graham, was 94 years old at the time of her death and was physically helpless, bedridden, and practically blind. She had executed two wills prior to the will being challenged, one about 17 years before her death, and one about four years before her death. In both of these, she left modest bequests to friends and relatives and devised the bulk of her estate in trust to erect a memorial to honor her deceased husband.
On the day of Letitia Graham’s death, Beatrice Newport produced a third will that devised the major portion of the estate to herself. This will was known only to herself and two others, only one of whom was acquainted with the decedent. The decedent had been declared incompetent only about seven months after the execution of this will.
The Florida Supreme Court found significant the unexplained departure by the decedent from an intention that she had persisted in for more than 30 years, together with the surrounding circumstances,25 and stated:
Neither do we find any explanation why Mrs. Graham departed from her purpose to establish a memorial to her deceased husband. She persisted in that purpose for more than thirty years, provided for such a memorial in the wills of 1921 and 1934, reaffirmed her purpose in this after the execution of the will in question and so far as the record discloses, she never at any time expressed an intention to depart from this purpose to anyone but Mrs. Newport….
Changing the current of one’s estate from the course repeatedly marked for it is not a trivial matter and should not be done except on conclusive proof that such was the intent of the testator. It will not be done on evidence challenged and discredited in the manner shown here.26
Based on the facts of the case, the court held the burden of proof was on the proponent to prove that the will was the free and voluntary act of the testatrix.27
In both of these cases, the unexplained departure from an intention that had been consistently held over a significant period of time, together with questionable surrounding circumstances, gave rise to a presumption of undue influence.
• Suspicious Circumstances Presumption — There are a number of older decisions in which undue influence was presumed based on a variety of suspicious circumstances. There are no recent decisions applying this presumption, but the decisions have not been overturned. Some contain factors similar to the Carpenter factors, but not all of the Carpenter factors are present in these cases.
In the case of In re Gottschalk’s Estate, 196 So. 844 (Fla. 1940), the court held that suspicious circumstances surrounding the preparation and execution of a will can give rise to a presumption of undue influence. The court reviewed the facts:
At the time of her death, the testatrix was [65] years old and of very modest estate. For many years, her estate and support had been largely contributed to by appellee who was her niece and adopted daughter and who had been her constant companion for [27] years. They lived alone until three or four years before her death when appellant moved in the home with them as a roomer. He had no visible occupation, was about the house most of the time with the testatrix to whom he proposed marriage though he was years her junior. He produced the will shortly after her death under which he was the main beneficiary and was named administrator of the estate without bond. No one else knew of the will. It was inconsistent with the prior expressed intent of the testatrix, was executed in secret, its execution was kept secret from the lawful heirs until after the death of the testatrix and it was as unnatural as it was possible for a will to be.28
We do not mean to relax the rule that one may dispose of his estate to whom he pleased barring legal limitations, but we do hold that when a total stranger moves into the home with an old lady, secures her confidence, and shows up after her death with a will to what she has that none of her lawful heirs know anything about, and which is surrounded by other suspicious circumstances, the burden is on him to show that he came by it as the free voluntary act of the testatrix and that she was in her right mind when she executed it.29
Based on these facts, the court held the proponent of the will was required to prove that the will was the free and voluntary act of the decedent.30
In the case of In re Burton’s Estate, 45 So. 2d 873 (Fla. 1950), the court reviewed a final order dismissing a complaint for failure to state a valid cause of action to revoke the probate of a will on the grounds of undue influence. The following factors, taken together, were sufficient to allege undue influence: the unnatural disposition of the property; the extreme age of the decedent; the opportunity that the proponents of the will had to exercise influence because the testator resided in their home for a long period of time prior to, and until his death; the existence of a confidential relationship; that the will was kept secret from the son of the decedent; and that the terms were contrary to the prior expressed intentions of the decedent.31
• Effect of Presumption: Shift Burden of Proof — In Carpenter, the court held that, once the contestant has presented prima facie evidence to establish the presumption, the burden of proof shifted to the proponent to come forward with a reasonable explanation for his involvement. If the proponent provided a reasonable explanation, the presumption went away and the burden of proof remained with the contestant.32
This holding was superceded by F.S. §§90.302(2)-90.304 and §733.107(2), which provide that a presumption implementing public policy shifts the burden of proof concerning the nonexistence of the presumed fact, and that the presumption of undue influence is a presumption implementing public policy. Thus, once the contestant has presented prima facie evidence showing the presumption, the burden of proof shifts, and the proponent has the burden to prove the nonexistence of undue influence.33
Hack v. Janes, 878 So. 2d 440 (Fla. 5th DCA 2004), is a classic Carpenter case. The decedent did not have any children and, in an earlier will, left her estate to family (a nephew and niece and grandnieces and nephews), and a charity. She later came under the influence and control of a caregiver, who obtained a power of attorney and control of her finances and isolated her from her family. The caregiver and her husband arranged for the decedent to go to the caregiver’s attorney, who prepared a new will leaving the estate to the caregiver, the caregiver’s daughter, and the charity. This evidence presented a prima facie case of undue influence under the Carpenter presumption. Based on F.S. §§90.301-90.304, the Fifth District held, once prima facie evidence establishing the Carpenter presumption has been introduced, the burden of proof shifts to the will proponent, who then has the burden to prove the nonexistence of undue influence.
• Standard of Proof — In decisions involving will contests, challenges to a gift, and challenges to a conveyance of real property based on undue influence, courts have held that preponderance (greater weight) of the evidence is the required standard of proof to establish undue influence, and also to prove the nonexistence of undue influence, once the burden of proof shifts to the proponent.34
In Fogel v. Swann, 523 So. 2d 1227 (Fla. 3d DCA 1988), rev. denied, 534 So. 2d 399 (Fla. 1988), the Third District held the standard of proof required to establish undue influence for both inter vivos transactions and the execution of a will is preponderance of the evidence. In Diaz v. Ashworth, 963 So. 2d 731 (Fla. 3d DCA 2007), rev. denied, 973 So. 2d 1120 (Fla. 2007), and Hack v. Janes, 878 So. 2d 440 (Fla. 5th DCA 2004), the Third and Fifth districts respectively held that, when the burden of proof shifts to the proponent to prove the transaction was the voluntary act of the person, the standard of proof is preponderance of the evidence.35
The preponderance of evidence standard is supported by decisions dealing with proof of fraud. In Wieczoreck v. H & H Builders, 475 So. 2d 227 (Fla. 1985), in answering a certified question, the Florida Supreme Court held that only a preponderance of the evidence is required to establish fraud, whether the action is at law or in equity. As the dissent points out, since this holding applies to equitable actions, the decision means the standard of proof in actions to cancel, rescind, or reform a written document, or deny its enforcement, is preponderance of the evidence.
Several decisions hold undue influence is a type of fraud.36 Thus, the Wieczoreck decision supports the position that only a preponderance of evidence is required to establish undue influence. And, in Hack v. Janes, 878 So. 2d 440 (Fla. 5th DCA 2004), in holding that the standard required to show lack of undue influence is preponderance of the evidence, the Fifth District stated, “The preponderance or greater weight of the evidence is the generally accepted burden of proof in civil matters.”37
Incapacity
• Meaning of Incompetence — There are various decisions that address the meaning of competence as concerns specific transactions, such as the making of a will, the making of a nuptial agreement, and the making of a deed. A commonly used definition of testamentary competence is “the ability to understand generally the nature and extent of one’s property, the relationship of those who would be the natural objects of the testator’s bounty, and the practical effect of a will.”38
In the case of In re Estate of Dunson, 141 So. 2d 601 (Fla. 2d DCA 1962), a brother and sister were orphaned and separated early in life, and grew up apart from each other. Neither had children. They were reunited later in life.
The sister had accumulated a sizable estate, but the brother never held regular employment and was indigent. The sister came down with brain cancer and was hospitalized. She had surgery for the cancer in June 1959. After the operation, she was declared incompetent, and two days later, on June 29, 1959, she died.
About five months before her death at the age of 79, the sister took steps to have a will prepared by an attorney, and the will was finalized, and then executed on March 6, 1959. The will made minor gifts of personal property to four named individuals and left the bulk of the estate in trust to provide for the testatrix’s brother. Under the terms of the testamentary trust, the brother was to receive the sum of $200 per month for life, and the trustee had a power to distribute additional amounts for hospital, nursing, and care of the brother during his life, and for burial upon his death. The residue remaining after his death was to be distributed to the intestate successors of the testatrix.
The brother challenged the will on the grounds of incompetence and undue influence. As evidence of incompetence, the brother argued that the manner and size of the devise to him was unnatural. The Second District noted that a person is not incompetent because of being elderly, or physically frail, or sick, or having failing memory and vacillating judgment. All that is required is that the person has the ability to understand “in a general way the nature and extent of the property to be disposed of, his relationship to those who would naturally claim a substantial benefit from the will, as well as a general comprehension of the practical effect of the will as executed.”39 Based on this definition, the court held that the plan of disposition was logical and the brother had failed to show the testatrix was incompetent. Admission of the will to probate was upheld.
The standard for competence to make a deed differs from the standard for competence to make a will. The standard for competence to make a deed is whether a grantor was capable of understanding both the nature of the transaction and the significance and effect of the transaction.40 S imilar language is used in cases involving a gift of property41 and contracts.42
The elements of the standard for competence to make a deed have distinct meanings and both must be present before a person will be considered to be competent. Not only must the grantor have the ability to comprehend the nature of the transaction, the grantor must also understand the effect and significance of the transaction.
Long v. Moore, 626 So. 2d 1387 (Fla. 1st DCA 1993), involved a buyer who was elderly, in poor health, with very limited income, and had been diagnosed as a chronic paranoid schizophrenic who suffered from delusions. He received $100,000 from a settlement as a result of the death of a son, but had a delusion that he would receive this sum annually. He and his wife entered into a transaction and purchased a house from the Moores. After they defaulted on the purchase money mortgage, the Longs brought an action to rescind the transaction on the basis of incompetence.
There was evidence Mr. Long understood the arithmetic of the real estate purchase and, thus, the nature of the transaction. However, there are two aspects to the meaning of competence, and the decision of the First District turned on the second aspect: Whether the buyer had the ability to understand the effect and significance of the transaction. The First District held that intellectual capacity to understand a transaction does not mean a person is competent. When a person has a major thought disorder or mental illness, which prevents him or her from understanding the effect and significance of a transaction, he or she is incompetent to enter into the transaction. The court stated: “The mental incompetence of one party to a real estate transaction, rendering him unable to understand the effect and significance of his actions, warrants rescission of the transaction.”43
A nuptial agreement is a contract,44 and presumably the standard of competence for this type of agreement is the contract standard. No Florida cases were found that specifically dealt with the standard of competence for entering into a nuptial agreement. Ellis v. Ellis, 385 So. 2d 135 (Fla. 2d DCA 1980), is the only case found that addresses the meaning of competence for making a similar agreement, to wit, a property settlement agreement pursuant to a dissolution of marriage action. The Second District held the allegation that the former husband was “unable to utilize the reasoning, understanding and logic which ordinarily would be used by a person of ordinary prudence when dealing with property matters” stated an action for rescission based on incompetence.45
The court decisions do not use the same language in the standards for competence to make a will and competence to make a deed or a contract. Only one Florida decision was found that addressed the relationship between standards of competence for the different transactions.
An issue in the case of Saliba v. James, 196 So. 832 (Fla. 1940), was the standard of competence to make a gift. In this case, John James was adjudicated to be insane and Leon James appointed as his guardian. In the years prior to the adjudication, John James made significant gifts of property to the Salibas, including cash, an automobile, rings, and an airplane. The guardian challenged the gifts on the basis of incompetence and undue influence. There was evidence of lack of mental ability on the part of John James at the time of the gifts, and that the Salibas had isolated and imprisoned John James in a hotel room.
The legal authorities differed on whether the standard for competence to make a gift should be the testamentary standard or the contract standard. The decision of the Florida Supreme Court recognized that a higher level of mental ability is required to make a contract than to make a will. As to the standard of competence for making gifts, the court stated:
It is deducible from the…authorities…that to make a gift legal and binding the donor must possess sufficient mental capacity and the test of mental capacity so required is said to be whether or not donor has the mental ability to understand the nature and effect of the transaction. If it is shown that the donor has sufficient intelligence to know what he was doing at the time the gift or gifts were made, the same generally will be sustained.46
The court quoted from 28 Corpus Juris , pages 626-27, paragraph 17, which made the points that a person may have the capacity to make a will or a gift without having the capacity to make a contract or transact business; and, in order to show incapacity to make a gift, one does not have to show that the donor was an idiot or an imbecile at the time. The Saliba decision suggests the principle that the more complex and the greater the effect of a transaction, the higher the standard of competence.
• Presumptions Shifting the Burden of Proof — The general presumption is that a person is competent to make a will, deed, gift, and engage in other transactions.47 A deed is presumed to be valid.48 The person challenging a transaction on the grounds of lack of competence has the burden to prove the person was incompetent.49
Incompetence can be proven by direct proof of the mental condition of the person at the time of the transaction. In the case of Vignes v. Weiskopf, 42 So. 2d 84 (Fla. 1949), the contestant proved incompetence by direct evidence of the testator’s condition at the time when he executed the will. The testator did not have a clear idea of what he intended, had no comprehension of what he had done when he executed the codicil, and was not acquainted with its contents. In the case of In re Estate of Coles, 205 So. 2d 554 (Fla. 2d DCA 1968), incompetence was found based on evidence that, at the time of executing the will, the testatrix was under the influence of a narcotic drug that affected her intellect and reasoning processes and resulted in stupefaction.50
In both of these cases, there was evidence of the person’s condition at the time of signing the document, in these cases, a will. However, in many cases, there may not be evidence of the person’s condition at the time of the transaction. In these cases, a contestant can rely on evidence of the person’s condition before and after the transaction and can also present evidence to establish a presumption that shifts the burden of proof.
In the case of In re Estate of Weihe, 268 So. 2d 446 (Fla. 4th DCA 1972), quashed, 275 So. 2d 244 (Fla. 1973), the will proponent presented testimony of the attorney who prepared the will, a family physician, a friend of the testator, and the witnesses who were present at the time the will was executed. The contestants presented testimony of a doctor who had treated the decedent, a board-certified pathologist who performed an autopsy on the decedent, a nonboard-certified psychiatrist, neighbors and friends of the decedent, as well as his daughter. None of the contestants’ witnesses were present when the will was signed and none had knowledge of his condition at that time. The trial judge found the decedent was not competent to make the will.
The Fourth District reversed and held direct proof of the testator’s mental condition at the time of executing the will is required to prove incompetence. The Florida Supreme Court quashed the decision of the Fourth District and held beforehand and afterward evidence of the testator’s condition can be used to prove the testator was incompetent.51
In the case of In re Estate of Lamberson, 407 So. 2d 358 (Fla. 5th DCA 1981), the proponent presented evidence of the testator’s condition at the time he signed the will, while the contestant relied on evidence of the testator’s condition before and after the execution of the will. The Fifth District held the contestant could meet its burden of proof through the evidence of the testator’s condition before and after the execution of the will.52
In addition to direct proof of the person’s condition and proof of the person’s condition before and after the transaction, there are two factual patterns, which will establish a presumption of incompetence and shift the burden of proof to the proponent: 1) adjudication of incompetence prior to execution of the document; and 2) incompetence of the permanent type prior to execution of the document.
In Grimes v. Estate of Stewart, 506 So. 2d 465 (Fla. 5th DCA 1987), the court held that an adjudication of incompetency of the testator prior to the execution of a will creates a prima facie case that the testator was incompetent.53 This presumption also applies to other transactions, such as the making of a deed.54
In American Red Cross v. Estate of Haynsworth, 708 So. 2d 602 (Fla. 3d DCA 1998), rev. denied, Estate of Anderson v. American Red Cross, 722 So. 2d 192 (Fla. 1998), there were three wills at issue. The first was prepared by the decedent’s long-time attorney and executed in February 1993, when the decedent was 94 and a widower. This will left his estate primarily to six charities, which was consistent with his prior wills.
Around this time, the decedent’s niece started visiting him and he purchased her a house in Miami Beach, the area in which the decedent lived. Around the same time, the decedent’s long-time attorney instituted guardianship proceedings. During the course of those proceedings, the niece petitioned to become the guardian. The court entered an order on July 31, 1993, finding the decedent to be incompetent. The order was effective nunc pro tunc as of May 18, 1993.
In June or July 1993, the niece helped the decedent engage a different attorney to prepare a new will, which was executed on July 30, 1993. This will reduced the devises to the charities and increased the devises to the niece and other family members. On November 2, 1993, the decedent executed a third and final will. He died on December 29, 1995.
After his death, the various beneficiaries sought admission of all three wills to probate. The trial judge determined the November 2, 1993, will was invalid and admitted the July 30, 1993, will to probate. On appeal, the Third District held the adjudication of incompetency established a presumption of incompetency and shifted the burden of proof as to capacity to the will proponent, who was the niece. Because she failed to present competent substantial evidence that the testator was competent to make the July 30 will, the court reversed the order admitting this will to probate.
There is a second presumption that is similar but can be used when there has not be an adjudication of incompetence. Proof that a person was incompetent prior to the transaction, and that the condition was permanent and progressive, gives rise to a presumption that the person was incompetent at the time of the transaction.
In Kuehmsted v. Turnwall, 155 So. 847 (Fla. 1934), the decedent married, executed a will, and, nine days later, died. In a judicial proceeding that occurred after the death of the decedent, the marriage was determined to be invalid on the basis that the testator lacked mental capacity. A petition to revoke probate of the will was filed in a separate proceeding.
One of the issues in the probate proceeding was the party who had the burden of proof as to competence of the testator at the time of executing the will. Because of the finding in the marriage invalidation proceeding that the testator was incompetent at the time of marriage and the condition was permanent and progressive, there was a presumption of incompetence, and the proponent had the burden to prove the will was executed during a lucid moment or interval.55
There are different types and different causes of incompetence. Incompetence may be temporary, as when caused by drug use or some medical conditions. Incompetence may also be permanent and progressive. The nature of the incompetency determines whether proof of incompetence prior to a transaction gives rise to a presumption of incompetence.
If the condition of a person fluctuates and the incompetence is a temporary condition, then proof of incompetence prior to a transaction does not give rise to a presumption of incompetence.56 However, if incompetence is caused by a condition that is permanent and progressive, then proof of incompetence prior to the transaction gives rise to a presumption of incompetence.57
• Effect of Presumption / Lucid Interval — Once a contestant introduces prima facie evidence establishing one of the presumptions, the burden of proof shifts to the proponent to prove the transaction occurred during a lucid interval or moment.58 The term “lucid interval” does not mean a moment of awareness. In American Red Cross, the Third District explained: “The terms ‘lucid moment’ or ‘lucid interval’ do not describe a moment when the testator was not patently delusional. A ‘lucid moment’ is a period of time during which the testator returned to a state of comprehension and possessed actual testamentary capacity.”59
• Standard of Proof — There are only a few decisions that address the standard of proof for the issue of incompetence. Saks v. Smith, 145 So. 2d 895 (Fla. 3d DCA 1962), involved an action to set aside a deed, and the Third District held sanity is presumed until overcome by preponderance of evidence. In Hassey v. Williams, 174 So. 9 (Fla. 1937), which dealt with rescission of a deed, the Florida Supreme Court held the standard of proof is preponderance of the evidence.60 In the case of In re Kiggins’ Estate, 67 So. 2d 915 (Fla. 1953), which involved a will contest, the court held the standard of proof on the issue of incompetence is preponderance of the evidence.
Conclusion
The use of presumptions can change the outcome of a case. Oftentimes, a questionable transaction will occur when a person is elderly and weakened by age or illness. Many times, it is difficult to obtain direct evidence of the person’s condition at the time of a transaction because the person may be deceased or incompetent and all of the witnesses are biased.
For example, a person who is suffering from Alzheimer’s disease may know that people set a bunch of papers in front of him and told him to sign them, but not know what the papers were or their significance and effect. And, due to being dependent, he may be afraid to resist them. Further, oftentimes those who would object to the transaction may not be in the area and unaware of what is going on. To obtain a true picture of what occurred from biased witnesses is a difficult if not impossible task. If all of the witnesses present when a person signed the document favor the proponent, they will testify that the person was courteous and seemed to know what he was doing.
The courts recognize the biased nature of witnesses. The courts also have an understanding of the practical side of life, and that, for example, when a transaction is the genuine product of a person’s intent, he or she is the one who initiates the transaction and drives its completion. The courts likewise recognize that it is very unlikely a person will suddenly change his or her mind about an intention to which he or she has held without wavering or yielding for more than 30 years. Based on this understanding of human nature, the courts have established presumptions that shift the burden of proof to the proponent. Then the proponent has to prove the person knew what he or she was doing, and the transaction was the free and voluntary act of the person — thus, the value of presumptions.
It generally is more straightforward to obtain the evidence necessary to establish a presumption. The law firm that prepared a will, deed, or other document will be less biased and will have more accurate records of what occurred, who initiated the transaction, and who was present when it occurred. This evidence will enable one to establish the Carpenter presumption.
The person may have been vocal and unequivocal about his or her intentions and expressed those intentions unequivocally for more than 30 years. Then, out of the blue, when he or she has Alzheimer’s disease and is weakened, dependent, and surrounded by those who benefit from the transaction, he or she undertakes a transaction that is completely inconsistent with his or her expressed intentions. This evidence will enable one to establish the fixed intention presumption.
If there was an adjudication of incompetence six months before the transaction, it is straightforward to prove the adjudication, and then the burden of proof is reversed and placed on the proponent of the document. If there was no adjudication of incompetence, one is not left solely to the testimony of the biased witnesses. It is likely that the person was seen by impartial witnesses both before and after the transaction, such as a physician who can testify about his or her inability to count backwards by sevens; or friends who can testify about the person getting lost in a grocery store; or friends who can testify about him or her getting lost while going to the bathroom of a clubhouse. Through these witnesses, one may be able to establish the person had a permanent and progressive condition that rendered him or her incompetent. Then, a presumption of incompetence arises and the burden of proof shifts to the proponent.
The shifting of the burden of proof does not end the matter, and the proponent has an opportunity to show the person was competent and the transaction was not the product of undue influence. But, the use of the presumptions makes it possible for the court to be presented evidence of the person’s true condition and real intent. And, if you are the contestant, the use of presumptions may be the only available route to have the case and evidence heard by the court.
1 Fla. Stat. §732.502 (2013); Litigation Under Florida Probate Code §§3.3, 3.5 (9th ed. 2013); In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971); Price v. Abate, 9 So. 3d 37 (Fla. 5th DCA 2009); Jordan v. Fehr, 902 So. 2d 198 (Fla. 1st DCA 2005); In re Estate of Van Horne, 305 So. 2d 46 (Fla. 3d DCA 1974), cert. den., 320 So. 2d 388 (Fla. 1975).
2 See Chase Federal Savings & Loan Ass’n v. Schreiber, 479 So. 2d 90, 100 (Fla. 1985) (formalities required for a deed).
3 Fla. Stat. §732.702 (2013).
4 In re Estate of Carpenter, 253 So. 2d 697; Price, 9 So. 3d 37; Jordan, 902 So. 2d 198; Estate of Madrigal v. Madrigal, 22 So. 3d 828 (Fla. 3d DCA 2009); In re Estate of Van Horne, 305 So. 2d 46; Chapman v. Campbell, 119 So. 2d 61 (Fla. 2d DCA 1960); Cf. Espriella v. Delvalle, 844 So. 2d 674 (Fla. 3d DCA 2003) (deed is presumptively valid).
5 Carpenter Contractors of America v. Fastener Corp. of America, 611 So. 2d 564 (Fla. 4th DCA 1992); A.R. Holland, Inc. v. Wendco Corp. , 884 So. 2d 1006 (Fla. 1st DCA 2004); Murciano v. Garcia, 958 So. 2d 423 (Fla. 3d DCA 2007).
6 Adams v. Saunders, 191 So. 312 (Fla. 1939); Gardiner v. Goertner, 149 So. 186 (1932); Syfrett v. Syfrett-Moore, 115 So. 3d 1127 (Fla. 1st DCA 2013); John Knox Village of Tampa Bay, Inc. v. Perry, 94 So. 3d 715 (Fla. 2d DCA 2012); Gilmore v. Life Care Centers of America, 2010 U.S. Dist. LEXIS 111147, 2010 WL 3944653 (M.D. Fla. Oct. 7, 2010) (unpublished decision), aff’d, 448 F. Appx. 909 (11th Cir. 2011) (unpublished decision).
7 Gardiner, 149 So. 186; Levin v. Levin, 60 So. 3d 1116 (Fla. 4th DCA 2011); Estate of Brock, 692 So. 2d 907 (Fla. 1st DCA 1996), rev. den., 694 So. 2d 737 (Fla. 1997).
8 Peacock, 105 So. 322.
9 Id. See also In re Estate of Winslow, 147 So. 2d 613 (Fla. 2d DCA 1962); Thomas for Fennell v. Lampkin, 470 So. 2d 37 (Fla. 5th DCA 1985); Adams, 191 So. 312.
10 Gardiner, 149 So. 186; Williamson v. Kirby, 379 So. 2d 693 (Fla. 2d DCA 1980); In re Estate of Dunson, 141 So. 2d 601 (Fla. 2d DCA 1962); Heasley v. Evans, 104 So. 2d 854 (Fla. 2d DCA 1958).
11 Peacock, 105 So. 321; Gardiner, 149 So. 186; Hack v. Estate of Helling, 811 So. 2d 822 (Fla. 5th DCA 2002).
12 In re Estate of Reid, 138 So. 2d 342 (Fla. 3d DCA 1962); Estate of Brock, 692 So. 2d 907; McLain v. McLain, 305 So. 2d 884 (Fla. 1st DCA 1975), cert. den., 321 So. 2d 554 (Fla. 1975).
13 See also In re Estate of Krieger, 88 So. 2d 497 (Fla. 1956).
14 In re Estate of Carpenter, 253 So. 2d 697; In Re Burton’s Estate, 45 So. 2d 873 (Fla. 1950); Gardiner, 149 So. 186; In re Estate of Reid, 138 So. 2d 342.
15 In re Estate of Carpenter, 253 So. 2d at 701-03; Hack, 811 So. 2d 822; Sun Bank/Miami, N.A. v. Hogarth, 536 So. 2d 263 (Fla. 3d DCA 1988), rev. den., 545 So. 2d 1369 (Fla. 1989).
16 Allen v. Estate of Dutton, 394 So. 2d 132 (Fla. 5th DCA 1980), pet. den., 402 So. 2d 609 (Fla. 1981).
17 Confidential relationship found: Cripe v. Atlantic First National Bank of Daytona Beach, 422 So. 2d 820 (Fla. 1982); Fogel v. Swann, 523 So. 2d 1227 (Fla. 3d DCA 1988), rev. den, 534 So. 2d 399 (Fla. 1988); In re Estate of Lamberson, 407 So. 2d 358 (Fla. 5th DCA 1981); Hack, 811 So. 2d 822.
18 Active procurement found: Cripe, 422 So. 2d 820; RBC Ministries v. Tompkins, 974 So. 2d 569 (Fla. 2d DCA 2008); Hack, 811 So. 2d 822; Sun Bank/Miami, N.A., 536 So. 2d 263; Lampkin, 470 So. 2d 37; In re Estate of Lamberson, 407 So. 2d 358. Active procurement not found: Estate of Kester v. Rocco, 117 So. 3d 1196 (Fla. 1st DCA 2013); Derovanesian v. Derovanesian, 857 So. 2d 240 (Fla. 3d DCA 2003), rev. den., 868 So. 2d 522 (Fla. 2004); Stetzko v. Coleman, 714 So. 2d 1087 (Fla. 4th DCA 1998), pet. den., 727 So. 2d 911 (Fla. 1998); Raimi v. Furlong, 702 So. 2d 1273 (Fla. 3d DCA 1997), rev. den., 717 So. 2d 531 (Fla. 1998); Jacobs v. Vaillancourt, 634 So. 2d 667 (Fla. 2d DCA 1994), rev. den., 642 So. 2d 746 (Fla. 1994); Ballard v. Ballard, 549 So. 2d 1176 (Fla. 2d DCA 1989); Coppock v. Carlson, 547 So. 2d 946 (Fla. 3d DCA 1989), rev. den., 558 So. 2d 17 (Fla. 1990).
19 Cripe, 422 So. 2d at 823-24.
20 Id. at 824.
21 See Jordan v. Noll, 423 So. 2d 368 (Fla. 1st DCA 1982), pet. den., 430 So. 2d 451 (Fla. 1983).
22 See also Fogel, 523 So. 2d 1227; Dunn v. White, 500 So. 2d 565 (Fla. 2d DCA 1986) (involved rescission of a deed and satisfaction of a deed of trust); Williamson, 379 So. 2d 693.
23 Lampkin, 470 So. 2d at 39-40 (citations omitted).
24 Newman, 82 So. at 248.
25 The court did not use the term “presumption” and did not state there was a presumption of undue influence. Rather, based on these facts, the court held the proponent had the burden to prove that the will was the free and voluntary act of the decedent. Thus, the effect of its holding was to find a presumption of undue influence which shifted the burden of proof to the will proponent. Implicit in the decision is a ruling that proof of these facts established a presumption of undue influence that shifted the burden of proof to the will proponent.
26 Watts, 6 So. 2d at 832-33.
27 See also In re Burton’s Estate, 45 So. 2d at 875; Gardiner, 149 So. 186.
28 In re Gottschalk’s Estate, 196 So. at 845.
29 Id.
30 In these cases, the courts did not state there was a presumption of undue influence. Rather, based on these facts, the courts held that the proponent had the burden to prove that the will was the free and voluntary act of the decedent. The effect of the holdings was to find a presumption of undue influence that shifted the burden of proof to the will proponent. Implicit in the decision is a ruling that proof of these facts established a presumption of undue influence that shifted the burden of proof to the will proponent.
31 In re Burton’s Estate, 45 So. 2d at 874-76; Cf. Lamb v. Jones, 202 So. 2d 810 (Fla. 3d DCA 1967), cert. den., 210 So. 2d 867 (Fla. 1968).
32 Mulato v. Mulato, 705 So. 2d 57 (Fla. 4th DCA 1997), rev. den., 717 So. 2d 535 (Fla. 1998); Majorana v. Constantine, 318 So. 2d 185 (Fla. 2d DCA 1975).
33 Diaz v. Ashworth, 963 So. 2d 731 (Fla. 3d DCA 2007), rev. den., 973 So. 2d 1120 (Fla. 2007); Hack v. Janes, 878 So. 2d 440 (Fla. 5th DCA 2004).
34 In re Estate of Carpenter, 253 So. 2d 697 (will contest); Cripe, 422 So. 2d 820 (inter vivos gift of intangible personal property); Adams, 191 So. 312 (challenge to a contract); RBC Ministries v. Tompkins, 974 So. 2d 569 (Fla. 2d DCA 2008); Mulato v. Mulato, 705 So. 2d 57 (Fla. 4th DCA 1997), rev. den., 717 So. 2d 535 (Fla. 1998) (deed rescission based on undue influence); Raimi, 702 So. 2d 1273; Jordan v. Jordan, 601 So. 2d 287 (Fla. 3d DCA 1992); Coppock v. Carlson, 547 So. 2d 946 (Fla. 3d DCA 1989), rev. den., 558 So. 2d 17 (Fla. 1990); Sun Bank/Miami, N.A., 536 So. 2d 263; Ballard, 549 So. 2d 1176; In re Estate of Dunson, 141 So. 2d 601.
35 Accord Estate of Madrigal, 22 So. 3d 828. There are several cases that use language suggesting a higher standard in cases involving rescission of a deed or instrument. Harris v. Harris, 260 So. 2d 854 (Fla. 1st DCA 1972), used a clear and convincing evidence standard. In Howell v. Flore, 210 So. 2d 253 (Fla. 2d DCA 1968), the Second District held the presumption of validity of a deed had to be overcome by evidence that is clear, strong, and convincing. In Nussey v. Caufield, 146 So. 2d 779 (Fla. 2d DCA 1962), the standard in a rescission action based on mistake of fact was clear and convincing evidence.
36 In re Guardianship of Rekasis, 545 So. 2d 471 (Fla. 2d DCA 1989); Peacock, 105 So. 321.
37 Hack, 878 So. 2d 444; see also Bacon & Bacon Manufacturing Co. v. Bonsey Partners, 62 So. 3d 1285 (Fla. 2d DCA 2011) (standard required to prove fraudulent inducement to rescind a contract is greater weight of the evidence).
38 Litigation Under Florida Probate Code §3.7 (9th ed. 2013); see also In re Estate of Dunson, 141 So. 2d 601. It seems this abbreviated definition does not fully convey the need for the testator to be able to understand what he is doing. In Mulford v. Central Farmers Trust Co., 126 So. 762 (Fla. 1930), the court elaborated on this definition and stated, “If the testator comprehends perfectly the condition of his property, his relation to those who would, should, or might have been the objects of his bounty, the scope and effect of his will which comprehends sufficient active memory to collect voluntarily in his mind the complexities of the business to be transacted and keep them in mind long enough to perceive their relation to each other and to form a rational judgment in relation to them, he is said to have mental capacity.” Id. at 764 (quoting Hamilton v. Morgan, 112 So. 80 (Fla. 1927)). This statement more fully conveys the importance of the testator being able to understand what he or she is doing; see also In re Estate of Brackett, 109 So. 2d 375 (Fla. 2d DCA 1959), cert. den., 113 So. 2d 231 (Fla. 1959); American Red Cross v. Estate of Haynsworth, 708 So. 2d 602 (Fla. 3d DCA 1998), rev. den., Estate of Anderson v. American Red Cross, 722 So. 2d 192 (Fla. 1998); Raimi, 702 So. 2d 1273. See Jervis v. Tucker, 82 So. 3d 126 (Fla. 4th DCA 2012), rev. den., 104 So. 3d 1084 (Fla. 2012) (testamentary capacity is measured the same for wills and trusts).
39 In re Estate of Dunson, 141 So. 2d at 604.
40 Hartnett v. Lotauro, 82 So. 2d 362 (Fla. 1955); Wise v. Wise, 184 So. 91 (Fla. 1938); Hassey v. Williams, 174 So. 9 (Fla. 1937); Travis v. Travis, 87 So. 762 (Fla. 1921); Heasley, 104 So. 2d 854; see also Lane v. Talloni, 626 So. 2d 316 (Fla. 5th DCA 1993); Raulerson v. Metzger, 375 So. 2d 576 (Fla. 5th DCA 1979).
41 Saliba v. James, 196 So. 832 (Fla. 1940).
42 John Knox Village of Tampa Bay, 94 So. 3d 715; Adams, 191 So. 312; Gilmore v. Life Care Centers of America, 2010 U.S. Dist. LEXIS 111147, 2010 WL 3944653 (M.D. Fla. Oct. 7, 2010) (unpublished decision), aff’d, 448 F. Appx. 909 (11th Cir. 2011) (unpublished decision).
43 Long, 626 So. 2d at 1388.
44 Lashkajani v. Lashkajani, 911 So. 2d 1154 (Fla. 2005).
45 Ellis, 385 So. 2d at 136-137.
46 Saliba, 196 So. at 835.
47 Wise, 184 So. 91; Hassey, 174 So. 9; Gardiner, 149 So. 186; Travis, 87 So. 762; Adams, 191 So. 312; Saks v. Smith, 145 So. 2d 895 (Fla. 3d DCA 1962); Chapman, 119 So. 2d 61.
48 Wise, 184 So. 91; Hassey, 174 So. 9; Saks, 145 So. 2d 895.
49 In re Estate of Weihe, 268 So. 2d 446 (Fla. 4th DCA 1972), quashed on other grounds, 275 So. 2d 244 (Fla. 1973); In re Estate of Witt, 139 So. 2d 904 (Fla. 2d DCA 1962), cert. den., 146 So. 2d 754 (Fla. 1962); Wise, 184 So. 91; Chapman, 119 So. 2d 61.
50 See Mulford v. Central Florida Farmers Trust Co., 126 So. 762 (Fla. 1930); In re Estate of Brackett, 109 So. 2d 375.
51 In re Estate of Weihe, 275 So. 2d 244; see In re Estate of Zimmerman, 84 So. 2d 560 (Fla. 1956).
52 The Fifth District relied on In re Estate of Zimmerman, 84 So. 2d 560; and In re Estate of Weihe, 275 So. 2d 244, which are probably the leading cases on this issue.
53 Accord American Red Cross, 708 So. 2d 602.
54 Stanley v. Campbell, 27 So. 2d 411 (Fla. 1946); Kuehmsted v. Turnwall, 155 So. 847 (Fla. 1934); Chapman, 119 So. 2d 61.
55 See also Crews v. State, 196 So. 590 (1940).
56 Jordan, 423 So. 2d 368; Alexander v. Estate of Callahan, 132 So. 2d 42 (Fla. 3d DCA 1961); Crews, 196 So. 590. See In re Estate of Carnegie, 13 So. 2d 299 (Fla. 1943); Parks v. Harden, 130 So. 2d 626 (Fla. 2d DCA 1961).
57 Alexander, 132 So. 2d 42; Kuehmsted, 155 So. 847; Crews, 196 So. 590; Skelton v. Davis, 133 So. 2d 432 (Fla. 3d DCA 1961).
58 Stanley, 27 So. 2d 411; Kuehmsted, 155 So. 847; American Red Cross, 708 So. 2d 602; Skelton, 133 So. 2d 432; Chapman, 119 So. 2d 61. See Raimi, 702 So. 2d 1273. In Jervis, 82 So. 3d 126, the terms of the trust requiring certification of competence were upheld to void an amendment, though there was evidence that the grantor was competent.
59 American Red Cross, 708 So. 2d at 606.
60 See also Wise, 184 So. 91; Hendershaw v. Estate of Hendershaw, 763 So. 2d 482 (Fla. 4th DCA 2000), rev. dism., 779 So. 2d 271 (Fla. 2000); In re Estate of Dunson, 141 So. 2d 601 (will contest); In re Estate of Witt, 139 So. 2d 904 (will contest); Parks, 130 So. 2d 626 (lease with option to purchase). See also In re Estate of Brackett, 109 So. 2d 375.
Larry Studer is a sole practitioner, with an office in Orlando. He earned his J.D. with honors from the University of Florida in 1984. His practice emphasizes probate and probate litigation, wills, trusts, and related planning, and real property transactions.
