(CAVEAT: Even though a lot of details are public record, the names and relevant identifying details have been altered in order to maintain any potential attorney-client privilege).
I once had a client named
Faye. Her story spanned 60 years, took
place in four states, involved a child abduction, adoptions, greed, theft,
and a mother's overwhelming guilt. This is Faye's story.
Faye was the youngest of five
children. The oldest two of her siblings
were her brothers John and Frank. The
next oldest sibling was her sister Eliza.
Her closest sibling in age was her brother Mike. When Faye was about five her father announced that he wanted a divorce. The
family lived in Virginia . This was in the late 1940's. Faye’s mother had no marketable skills and no
college education, without which a woman in that day could not really make
enough money to support herself, much less her five young children. Before the divorce was
even filed, Faye’s father picked her up at the playground and drove all the
way to California . Faye lived with her father in California
until she was a young adult, with no contact at all with her mother. In essence, her father kidnapped Faye and
left the four older children with their mother to fend for themselves. Faye's father never supported her mother or
his other four children and acted as if they did not exist.
After Faye’s father abducted her
from the playground, her mother fell apart.
Ultimately, Faye’s three brothers and sister were put up for adoption by
her mother. The two oldest boys, John
and Frank, were adopted by Faye’s father’s brother and his wife. Thus, while they were legally adopted, their
last name never changed. Faye’s sister
was adopted by an aunt who lived in Panama City . Her last name changed because the aunt was
married. Faye’s youngest brother was
adopted by total strangers; his last
name changed to reflect his new familial relationship.
Faye was reunited with her mother
in her early adulthood. At that time,
her mother had gotten herself back together and moved to Panama
City to be close to Faye’s sister. Faye came back to live with her mother in Panama
City when she was a young adult. Faye lived with her mother on and off
throughout her mother’s life. Before Faye’s sister turned thirty, she died in a
car accident leaving two small sons. In
the last few years of Faye’s mother’s life, she was reunited with John and Frank.
They made numerous visits to Panama City
to see their mother and would often stay with her.
Faye's mother never got over having to put her children up for adoption. While she ultimately reunited with four of her five children, the youngest son, Mike, wanted nothing to do with his "birth" family. Faye's mother kept
a Bible on her bedside table. In
the Bible were copies of the adoption papers for all four of her children. It was the first thing she saw in the morning and the last thing she saw at night: a physical manifestation of her failings. Anyone who knew Faye's mother, knew her story and the guilt she struggled with to the end of her days.
Faye’s mother died and
Faye hired me to probate her estate. This case was unique in so many ways. Faye’s mother’s Will was a holographic Will. What this means is that the Will was entirely
handwritten. A holographic Will in Florida
is perfectly legal as long as all of the formalities required by the Will
statute are followed. The formalities
are pretty simple. First, the person
signing the Will (Testator or Testatrix)
must sign at the end. Second, the
Testator must then either affirm their signature to two witnesses (“this is my
signature, please witness it”) or actually make the signature in the presence
of two witnesses. Next, and the part
which most often is not performed correctly, the two witnesses must witness the
signature in the Testator’s presence and in the presence of each other. A notary is not required in order to properly
execute a Will; however, if you wish to make the Will self-proven then the
Testator and both witnesses must sign again with the same formalities and the
notary must notarize all three signatures. A self proving Will is ideal because it does
not require the testimony or oath of a witness to allow admission of the Will
to probate. Click here for more detail on wills and probate.
Faye’s mother’s
Will left everything to Faye and named Faye Personal Representative. Everything appeared to be in order, so we filed a Formal Administration. Faye’s brothers intervened together with
Eliza’s two children claiming that they were entitled to a share of the estate and contesting the Will.
A Will can be contested in Florida for three main reasons: first, a Will may be contested on the basis that
it was improperly executed; second, a
Will can be contested because it is the product of “undue influence;” third, a Will can be contested on the basis
that the Testator was incompetent at the time the Will was executed. Undue influence is a topic in and of itself
and it was not raised in this case. The contest was based on claims of improper
execution as well as incapacity of Faye’s mother.
Testamentary capacity is a different evaluation from mental
capacity. In Florida, testamentary capacity means
that you are able to identify the natural objects of your bounty, you
comprehend the nature and extent of your assets, you are oriented to time
and place, and you are capable of understanding the legal effect of the
documents that you are signing. This is
a very minimal standard. An oft cited case held that "even a mad man may sign a will during a lucid interval."
When we first received the intervention pleadings, we foolishly though that we would be able to resolve
the matter quickly because John, Frank, and Eliza had been
legally adopted. In Florida when a
person is legally adopted they are no longer the blood relatives of their
natural parents or anyone related to their natural parents, and are immediately
treated as a blood relative of their adopted parents and anyone related to
their adopted parents. So, in essence,
adoption in Florida changes your
blood lines by legal fiction. There are three main exceptions to this rule, found at Florida Statute chapter 732.108(1)(a)-(c)(2013)(click here for the text). For this reason we believed that simply showing
the court that John, Frank and Eliza had been adopted would be sufficient.
That is not how things turned out, and what started as
a simple probate with a handwritten will turned into a three year saga with several
dead ends and turns before resolution was finally found.
Copyright 2013 Julie Ann Sombathy All Rights Reserved
