Homestead, Will Contests, and Car Titles: The Last of Smokey Susan

Last month, I shared the sordid tale of one of my least favorite clients, Smokey Susan.  Susan's case involved numerous aspects of Florida probate law, some of which I addressed in this post, here, and here.

In addition, the results of Susan's case were directly affected by Florida Homestead law. Basically, Joe could not leave his interest in his homestead (really 100% but swindled by Susan for 50%) to anyone other than Tami because Tami was under 18 at the time of Joe's death. For a more in depth review of Florida Homestead law, check out this post.

The thing which ultimately tore it for me with Susan was the shenanigans she pulled with the title to the Cadillac.  For more information about how to transfer a title to a car after the owner dies without probate, check out this post.

Lastly, Susan's case involved a will contest.  The basics of a will contest were addressed by Faye's Story, Part One, Part Two, and Part Three.

A short epilogue to Smokey Susan's story:

Whatever happened to Joe's remains?  Melanie skipped out as soon as she figured out she wasn't getting the Cadillac or the house.  Susan did pay for Joe's funeral.  But don't give her too much credit for that sole act of decency;  she charged Tami's half of the sale proceeds from the homestead with the funeral expense in the guardianship.

Like I said, Susan was a real piece of work.


Cheers, and Happy Wednesday. We have officially made it to the downhill side of the week!

Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Filing a Caveat in Florida Probate: What is it and Why do I need it?

A caveat is a pleading which any interested person (creditor, heir, or other party who meets the definition under Fla. Stat. Ch. 731.201(23)) may file with the Probate Clerk in the county in which the deceased resided. The purpose of a caveat is to put the world on notice of your particular interest in the estate, and to make anyone trying to open the estate serve you with notice first before anything happens.

For example, in the case of Smokey Susan, we filed a caveat in order to keep Melanie from opening Joe's estate without our knowledge.  When Melanie did file her petition seeking to be personal representative, the rules required her to serve Susan with formal notice.  The service of formal notice gave Susan 20 days to respond.  Thus, we answered the petition and filed our own pleadings, thereby framing the dispute up for the court and preventing Melanie from seizing control of Joe's estate. Without the caveat, we would have been entitled to notice (to Susan as the natural guardian of Tami), but given Melanie's prior misrepresentations to the funeral home regarding Joe's lack of living relatives, there is a good chance we would not have received notice.   We would have been left with the unenviable task of checking the clerk's website daily to see if Melanie had opened the estate, and we would have had to go through an entire additional set of pleadings just to get our interest before the court.

A caveat is a great way to make sure that you know when a probate is filed.  Many times, a parent will die and a dispute will arise between siblings.  Generally, one of the siblings will have control of the parent's will, and has had access to the parent's finances up until the death, but refuses to share the information with the other children.  There is a method to force the person in control of the will to file it with the clerk of court (look for that information in my next post), but if there's no reason to do so and you just want to make sure a probate does not happen without your knowledge, a caveat is your best bet. Not only does it serve your purposes well, the filing fee is relatively inexpensive and the cost of preparing a caveat should be minimal.



Julie



Copyright 2013 Julie Ann Sombathy All Rights Reserved

Your Funeral: Who Gets to Direct the Details

Last week I shared the story of an old client, Smokey Susan.  Susan originally came to see me because the funeral home would not let her direct the disposition of her ex-husband's remains since there was another person claiming that right, and no clear winner to the dispute.

Susan really had no claim to any right to bury Joe:  they weren't married, and the fact that she was the mother of Joe's only child (a minor) was not very persuasive.  If no one else had claimed the right to direct disposition, Susan would have been okay.  The problem was Melanie's claim that under Joe's will, she had the right to make disposition decisions.

How could the dispute over what to do with Joe's remains have been resolved? The best way to avoid a problem at the funeral home is to execute an Appointment of Agent to Dispose of Bodily Remains.  In this document, you can name an agent as well as a successor agent.  You can also be as detailed or as nonspecific as you choose.

For example, I have clients who have very specific wishes with respect to burial versus cremation.  Along those same lines, many clients have very specific wishes with respect to their place of burial, or the treatment of their ashes.

You can also outline the type of service, if any, you want held in addition to other details.  As examples, I will share excerpts out of two of my favorite "directives":

I.     "I am to be buried in the family plot at the farm in Alabama, in the space between my mother and grandfather and I am to be dressed in the blue silk kimono my second husband brought me back from the War."

II.    "I do not want any type of service at the funeral home, or viewing.  Please bury me next to my wife, and have the preacher give a graveside service for family only.  On the following Saturday night, host a night in my honor at American Veterans Lodge # and open a $500 tab for my friends."

Both of these people are gone now, and their agents did as instructed.

I strongly recommend this document for couples when their children are a "Brady Bunch" or if their children fight and argue.  Often, deep resentments surface after the death of a loved one, and for some reason it starts at the funeral home.  I've had many a phone call from a distressed widow or widower who has found out at the funeral home that the stepchildren have very different ideas about where their deceased parent should be buried.  The strangest one was the case where the deceased had divorced the mother of the stepchildren 30 years prior, but the stepchildren wanted him buried next to their deceased mother (his ex-wife of 30 years) her rather than his current wife of 20 years!

Another way to avoid this situation is to purchase a prepaid funeral plan.  This allows you to decide many of the details in advance, and pay for it.

Many people think that an instruction in their will regarding their burial will suffice, and fifty years ago this was true;  however, the will has to be admitted to probate and the personal representative appointed before the personal representative has the legal authority to carry out your wishes.  Consider the time involved in finding an attorney, an appointment, preparation of the pleadings, and waiting on the court to enter an order and issue Letters of Administration. Even in the best of times, you could be facing a delay of 2-4 weeks, and that is only if everyone involved is on the same page.  If there is a dispute about the will, or there is no will and a dispute among the heirs about who should serve as personal representative, the delay could be months in duration. That's a long time to wait.


Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

A Tale of a Terrible Client--Smokey Susan

CAVEAT: Even though a lot of details are public record, the names and relevant identifying details of all persons, as well as some of the facts, in this post have been altered in order to maintain any potential attorney-client privilege.

Once I had a client named Susan.  She was a real piece of work. Don't cry for her. She totally doesn't deserve it.

Susan came to see me about her ex-husband, Joe.  She was trying make arrangements for Joe’s funeral, and claimed that a  "floozy" bartender named Melanie was trying to take control. Why did Susan care? Susan had a young daughter, Tami.  Susan's ex-husband, Joe, was Tami's adoptive father.  Susan and Joe were married and divorced two times.  Tami came along in between the first and second marriage, and Joe adopted Tami when she was about 5. No one had the authority to dispose of Joe's remains:  he wasn't married, had no living relatives other than Tami, and Tami was not 18.

At first, Susan presented very sympathetically.  Joe was a drunk, horrible person.  The second divorce came about because Joe had molested Tami.  Susan just wanted to protect Tami's interests, and Melanie at the dive bar down the street from his home was trying to steal Joe's estate from his young child.  Melanie claimed to have a will, but she would not provide a copy to Susan or to me.  Because Melanie had a will (she did show it to the funeral home) and because Susan was also claiming the right to dispose of Joe's remains as Tami's parent, the funeral home literally put Joe on ice and told Melanie and Susan to come back with a court order.

The first thing I did was file a Caveat for Susan on behalf of Tami in the probate court records on Joe's estate.  The Caveat insured that no one could do anything in Joe's estate without first giving Susan a 20 day notice.  Sure enough, Melanie filed a petition to administer Joe's estate just a few days later, and had to serve Susan.  I filed a motion to dismiss the petition, as well as an answer and counter-petition to invalidate the proffered will as the product of undue influence.  In other words, I filed a will contest on Susan's behalf. Last, I filed a petition to appoint Susan personal representative of Joe's intestate estate.

The only assets of any value belonging to Joe were a half interest as a co-tenant in his home, the contents of the home, and a Cadillac.  Susan owned the other half of the home, which was purchased by them during the second marriage.  By the time we got all of the initial motions and such before the court both Susan and Melanie had gone into the home and taken items of personal property and Melanie had taken possession of the Cadillac and was driving it (presumably with no insurance). Of course, Susan did not tell me before the hearing that she had taken things out of the home.  By contrast, I had heard extensively in person, on the phone, and in writing about Melanie having that Cadillac. 

A side note about Susan:  she was a heavy smoker.  We had to schedule her appointments so that no other clients were present so I could leave the door to my office open while meeting with her. Imagine the worst dive bar you've ever been in, multiply by 100, and then imagine that stink on one person.  That will give you an idea of how bad she smelled.  She was like Pigpen from Charlie Brown, with a haze of smoke, nicotine and tar buzzing around her at all times like an evil, migraine inducing force field.  Susan was a letter writer.  She would call me or come in, and then immediately follow up with a ten page letter which was nothing but a ramble and regurgitation of the conversation.  Invariably, the letter was trying to get me to agree with whatever harebrained idea she had hatched to get the Cadillac from Melanie.  Also invariably, the letter would smell so bad we would have to open it, and HANG IT IN THE OUTBUILDING BEHIND OUR OFFICE to air it out.  It would still stink afterwards, but it would be bearable. The letter would arrive, and the funk would precede it by 10 feet, minimum.  I never saw Susan when she didn't reek, have a tissue in hand, and she had at least one horrifying coughing fit per visit.  She was also actively sick every single time I saw her.  She even came to court while she had the flu.  I don't think I'll ever forget this aspect of the case. Susan was a one woman walking anti-smoking campaign.

Back to the hearing.  The court refused to appoint either party as personal representative and entered an order that the proceeding was adversary.  The court also entered an order prohibiting either party from removing things from Joe's home, and enjoining Melanie from driving the Cadillac (but allowing her to maintain custody of it for the time being). After the hearing, we filed a petition to determine homestead as to Joe's half interest as a cotenant in the home.  Because Tami was under 18, Joe could not leave his home to anyone else under the homestead provisions of the Florida Constitution.  Opposing counsel (who claimed to be a probate attorney) thought that Joe's will leaving everything to Melanie trumped Tami's homestead rights, which could not have been more wrong.

At Susan and Melanie's subsequent depositions, I first learned that during their second marriage, Joe had executed a will leaving everything to Susan.  The will also provided that if Susan was dead (which is how she would be treated post-divorce), Susan's sister was named as personal representative and trustee for Tami's benefit and Tami was the sole beneficiary of Joe's estate.  Melanie claimed that Joe adopted Tami solely to increase his disability benefits. According to Melanie, Tami had an ongoing relationship with her biological father who agreed to the adoption because he would not have to pay child support.  I also learned that a term of Susan and Joe's divorce was that Susan would deed her half interest in Joe's home to him, an act which she had thus far failed to do.  Melanie also testified that Susan routinely allowed Joe unsupervised visitation with Tami after the second divorce. 

Susan brushed off all of these facts:  she admitted letting her daughter visit with Joe after the divorce (she claimed he was "better"), she said Joe told  her she didn't have to deed him that half interest in his home, she didn't mention the will because she didn't like her sister and did not want her sister to get control of Joe's estate.  All Susan wanted to talk about, ad nauseum, was that old Cadillac.  I have often wondered if the Cadillac had something valuable hidden in it, considering the war Susan and Melanie waged over it.

Prior to his death, Joe had taken out a "title loan" on the car which remained unpaid.  Susan and I discussed her options: she could buy the lien, and we could file a replevin action and repossess the car to satisfy the lien.  Susan listened and understood (her stinky missives made the fact of her understanding very clear).  Instead of buying the loan, Susan went to the loan company and paid off the lien.  Thus, Susan got possession of the title which she then took to the DMV and totally misrepresented her relationship to Joe.  All she needed was a certified copy of Joe's death certificate and the original will she didn't like in order to walk into DMV with the car title and say she was still his wife in order to get the title put into her name. 

Susan showed up at my office and presented the new title as a fait accompli, expecting a pat on the back for a job well done.  This was the beginning of a very rapid end for me and Susan:  she was shocked that I was not happy with her clever thinking, and I was appalled at her disregard for my advice and the law.  I refused to file a replevin action for her and instructed her to that she had to immediately transfer the title back to Joe's name (albeit subject to her lien for the exonerated title loan). Susan refused to do so.  So, in due course, I terminated our relationship.

Susan went back to the attorney who prepared the "lost" will (that she didn't like) and an Order Determining Homestead was entered.  Tami never received a dime.  Susan sold the home within about a year of the order being entered to Tami's biological father. The deed was signed by Susan showed Susan as a co-owner.  How did she pull off that trick? Melanie dropped out as soon as she realized she was not getting the house. I was gone. Susan's new attorney did not know about the divorce agreement and so it looked like Susan owned half and Joe owned half. She even opened a guardianship for Tami, and represented that Tami only owned half (and more importantly, failed to tell anyone about her agreement to deed her half to Joe).  Then in the guardianship, Susan got all the proceeds from the sale (without telling anyone how the buyer was related to her and Tami) because she claimed to have been paying the mortgage and maintenance on the home (which was not the case when I represented her).

What happened to the Cadillac? Well, Susan filed a small claims action and repossessed the car from Melanie using the fraudulently obtained car title.  She also got a judgment for costs which Melanie ultimately had to pay.  Here again, she got away with this for most of the same reasons she got away with the house.  In addition, Melanie did not have an attorney, and must not have understood how Susan could only have lied to get the title.

Why didn't I intervene?  First, I didn't know about it until I went to look at the court records to write this post.  You fire a client and move on. The last pleading I saw in the probate was the Order granting my motion to withdraw. Susan sold the home and repossessed the car about a year later.  Second, even if I had known what Susan was up to, most likely I would not have been able to disclose anything to anyone in order to bring her lies and machinations to light.  In Florida, with very few exceptions, an attorney is obligated to keep the information obtained through representation of a client confidential. Attorneys are expected to err in favor of nondisclosure whenever there is even a question to disclose or not disclose. If I had known about the misrepresentation in the guardianship about Tami's interests in the home and the suit against Melanie to repossess the car, I would have at least called the Bar to get some guidance on my obligations to Susan.

Like I said, Susan was a real piece of work.  She has remarried twice in the intervening years. I could not bear to be within ten feet of her, so I find this fact particularly astounding. I looked Tami up on the internet recently, and it does not look to me like Susan had a transformative experience and became an exemplary parent. Poor Tami, she never had a fighting chance.

Coming up next week:  A post discussing the legal and procedural aspects of this story.

Have a great weekend!

Julie






Copyright 2013 Julie Ann Sombathy All Rights Reserved

Faye's Story (Part Three)

Today's blog is the final and third part of a client story.  Part One is the back story and context.  Part Two is the will contest. You should read these first if you haven't already done so.    

(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). 

By the time we reached the point in Faye's story where we determined that the Will was not admissible to probate, almost two years had passed.  During this time, Faye hired a private investigator in Virginia to search for the adoption papers for John and Frank.  We knew that John and Frank were most likely adopted in Virginia, but we did not know exactly where in Virginia and we were not one hundred percent sure that they had not been adopted in Maryland.  This is because very soon after when we believed that the adoption occurred, John and Frank’s adoptive parents moved to Maryland where they lived until their deaths.  The private investigator looked in all of the likely places in Virginia, and then focused his attention on Maryland.  Finding the adoption papers for John and Frank was a two and half year ordeal.  

The investigator first found the probate records of the adoptive parents.  Both the mother and father’s Will referenced John and Frank as their adoptive sons and left them everything.  Nevertheless, this was not direct proof of the adoption.  What we needed was direct evidence of the adoption: a certified copy of the decree of adoption.  So, the investigator kept going and even located the school where John and Frank attended K-12 grade, on the theory that their adoption papers would be in the records.  Unfortunately, this school burned to the ground with all of the records in it.  

After exhausting all potential sources for the adoption paperwork in Maryland and Virginia, Faye then hired an attorney in Virginia in the city where she knew her mother lived after her father left.  This is where we found the divorce decree which stated that four of the five children had been “adopted out” and that Faye was in her father’s custody.  Unfortunately, the divorce decree which recited that four of the five children were “adopted out” this was not direct but rather indirect evidence of the adoptions as well so the search continued. 

Our attorney in Virginia searched long and hard for the adoption paperwork in the town where the divorce was entered, to no avail.  He then turned his attention to where we knew either Faye’s parents had lived or where we believed John and Frank’s adoptive parents lived just prior to their move to Maryland. 

A final hearing was set on the issue of which of the children were legally entitled to inherit and we were set to proceed with the indirect evidence on hand, as well as Faye's testimony.  Without the direct evidence, it would be a decision for the court to make as the trier of fact based on all of the documents and testimony.  If you've never been in this position, let me tell you:  it stinks.  Knowing without doubt that something is true, and being unable to prove it with incontrovertible evidence is the pits both for the client and the attorney.  It would be a massive understatement to say we were stressing over the outcome of this hearing.

Then, for once in her life, luck finally intervened in Faye's favor.  Literally 24 hours before the hearing I received two phone calls.  The first phone call was from Faye.  In going through the attic at her mother’s house she found a box containing all of the adoption paperwork for all four of the adopted children.  None of the paperwork was certified; however, I was confident that I could at least convince the court to give us sufficient time to obtain certified copies now that we knew where to look.  As I hung up with Faye our Virginia attorney called to tell me that he had located the adoption file for John and Frank and that he was overnighting me a certified copy of the adoption papers.  

Once all of the dust settled, John and Frank were forced to drop their remaining action.  Faye inherited one hundred percent of her mother’s estate under the intestate statute because she was the only child who was still legally her mother’s child.    

These events happened a long time ago.  I recently saw Faye at the courthouse and I am sad to say that life continues to be unkind to her.  Faye is one of those people who just seems dogged by tragedy.  Her relationship with John and Frank was irreparably damaged by their actions in the probate.  She still has no contact with Mike (by his choice), and she has no relationship with her nephews by her sister Eliza.  

The greatest irony of the whole thing is that the only asset in the estate was a home.  Not even a particularly valuable home, just a nice little house in a slightly shabby neighborhood.  The most vicious litigation I've ever seen was in probate and in every single case the litigants were not fighting over things, but a mother's love.  

Faye and her brothers never really resolved that issue by fighting over the house and they probably never will.

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Copyright 2013 Julie Ann Sombathy All Rights Reserved

Faye's Story (Part Two)

Today's blog is the second part of a three part client story.  Part One is the back story and context. You should read it first if you haven't already done so.  Part Two is the will contest.  Part Three (coming Friday) is the conclusion. 

(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). 

Unfortunately, the adoption papers which Faye's mother kept in her Bible disappeared after the funeral.  Since the loss of the adoption paperwork worked to their benefit, John and Frank were the obvious suspects.  Because the adoptions occurred so long in the past and in another state, we had to hire a private investigator to find proof of the adoptions.  As for Eliza, a search of local records found a copy of her obituary which clearly referenced her adoptive mother and her natural mother.  This was enough to convince Eliza’s sons that they should back out of the litigation and they did so early on.   John and Frank on the other hand were also well aware that they had been adopted by an aunt and uncle, but were adamant that they were not adopted.  John and Frank were in it for the cash.  Because we could not find their adoption paperwork we had to proceed on their Will contest.     

In any Will contest regarding the proper execution of the Will, the most important people are the two witnesses to the Will.  If the Will is self proven, the notary is the third most important person.  If the two witnesses give testimony which contradict each other, or show that the Will was not executed properly then the proponent of the Will will lose on that ground.  So in the course of things, I found myself in Pensacola deposing the two witnesses to the holographic Will.  The witnesses were unrelated to each other in any way except they were both friends of Faye and her mother.   On the day that Faye’s mother executed her Will, they were having a party at her house which sounded like a cookout.  Both witnesses gave consistent testimony regarding the manner in which they witnessed the Will.  Unfortunately for Faye, the witnesses’ testimony also completely invalidated the Will.

Apparently, Faye’s mother hand wrote her Will and signed it.  During the party, she asked the first witness to witness her signature.  This part was done correctly in that Faye’s mother showed the signed Will and then attested to her signature to the witness and asked the witness to sign as a witness.  The problem is that the first witness witnessed the Will while the second witness was on the back deck drinking a beer.  Thereafter, the first witness went to the restroom and the second witness came in and Faye’s mother repeated the process.  Thus, neither witness was in presence of each other at all, much less in the presence of Faye's mother and each other, as is required by the Will statute. 

The end result of this was that Faye’s mother was intestate.  The brothers were counting on this because then they would inherit (under their reasoning) an intestate share of their mother’s estate.  Because Faye’s mother was not married at the time of her death her estate would be divided into four equal shares:  one each for Faye and her two brothers John and Frank, and one to be divided by Eliza’s children.  Everyone agreed that Mike had been adopted by strangers, so there was never any suggestion that he would inherit any of Faye’s mother’s estate.    

So, Faye's entire inheritance turned on proving the adoption of John and Frank by the aunt and uncle.  This proved to be incredibly difficult and ultimately required the services of a P.I. and an attorney in two different states as well as some luck.

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Copyright 2013 Julie Ann Sombathy All Rights Reserved

Faye's Story (Part One)

Today I am posting another old client story.  This story is told most easily in three parts.  Today is the back story and context. Part Two is the will contest.  Part Three is the conclusion. 

(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.

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