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Attorney Nicole R. Turcotte Joins ShuffieldLowman

Attorney Nicole R. Turcotte Joins ShuffieldLowman

ORLANDO, FLORIDA – ShuffieldLowman law firm recently announced that attorney Nicole R. Turcotte has joined the firm, practicing in litigation.

Formerly with another area law firm, Turcotte brings experience in the areas of corporate and insurance defense.  In addition, she has represented school districts and other local government agencies in contractual disputes, employment, public records and Constitutional issues.

Turcotte holds her J.D. from Florida A&M University College of Law and her B.S. in Legal Studies from the University of Central Florida.  She is a member of The Florida Bar and admitted to all Florida state courts; and the U.S. District Court for the Southern and Middle Districts of Florida.

ShuffieldLowman’s four downtown offices are located in Orlando, Tavares, DeLand and Daytona Beach.  The firm is a 34 attorney, full service, business law firm, practicing in the areas of corporate law, estate planning, real estate and litigation.  Specific areas include, tax law, securities, mergers and acquisitions, intellectual property, estate planning and probate, planning for families with closely held businesses, guardianship and elder law, tax controversy – Federal and State, non-profit organization law, banking and finance, land use and government law, commercial and civil litigation, fiduciary litigation, construction law, association law, bankruptcy and creditors’ rights, labor and employment, environmental law and mediation.

Challenges to a Will or Trust Part III – Undue Influence and Active Procurement of Testamentary Documents or Gifts

Challenges to a Will or Trust Part III – Undue Influence and Active Procurement of Testamentary Documents or Gifts

In In re: Estate of Carpenter, 253 So. 2d 697 (Fla. 1971) the Florida Supreme Court set forth a non-exhaustive list of factors courts should consider when determining whether an individual actively procured a change to a will or trust. Those factors are: (1) the presence of the beneficiary at the execution of a will or on the occasions when the testator expressed a desire to make a will; (2) recommendation by the beneficiary of an attorney to draw the will; (3) knowledge of the contents of the will by the beneficiary before the execution; (4) the beneficiary instructing the attorney drawing the will; (5) the beneficiary securing the witnesses to the will; and (6) the beneficiary has the will for safekeeping after the execution. In re Estate of Carpenter, 253 So. 2d. at 702. While the court stressed that the circumstances of each case will be different and that not all the factors need to be present in order to establish active procurement, they are generally applicable when there is a challenge to a will or trust based on undue influence.

Different challenges arise when the alleged undue influence involves gifts or transfers of money during an elderly individual’s life. In those circumstances, Florida courts look to a defendant’s attempts to obtain the gift in question by “special effort.” See Davis v. Foulkrod, 642 So. 2d 1129 (Fla. 4th DCA 1994). In Davis, the court found that an individual’s suggestion of potential banks, transportation of the elderly adult to the bank and her presence when the joint account in question was opened were insufficient to establish active procurement. Additionally, courts have looked at other factors to determine whether undue influence exists, including the mental acuity of the donor at the time of the gift. See Cripe v. Atlantic Bank, 422 So.2d 820 (Fla. 1982). As a result, litigants should be aware of the different types of proof necessary to show active procurement.

 

Challenges to a Will or Trust Part II – Undue Influence And The Confidential Relationship

Challenges to a Will or Trust Part II – Undue Influence And The Confidential Relationship

Often, the circumstances underlying a change in a testamentary gift begin with an elderly parent turning to an adult child for help in their daily activities. Whether it is driving to and from doctor’s appointments or moving into an adult child’s house, such relationships, at first glance, would appear to meet the definition of a confidential relationship in every instance.

Recently, however, one Florida court found that this type of relationship, between an elderly parent and adult child, was not enough to support the presumption of undue influence. See Estate of Kester v. Rocco, 117 So. 3d 1196 (Fla. 1st DCA 2013). In Kester, the daughter accused of undue influence assisted her mother with various tasks and provided transportation whenever her mother needed it. The Court found those activities were insufficient to prove a confidential relationship, stating that “[e]vidence merely that a parent and an adult child had a close relationship and that the younger person often assisted the parent with tasks is not enough to show undue influence. Where communications and assistance are consistent with a ‘dutiful’ adult child towards an aging parent, there is no presumption of undue influence.” Estate of Kester 117 So. 3d at 1200. As a result, an adult child accused of unduly influencing an elderly parent should carefully examine the boundaries of their relationship before conceding the existence of a confidential relationship and the other prerequisites to finding that there is a presumption of undue influence. The Kester case may signal a new trend that treats siblings who are caring for an elderly parent differently in the context of undue influence allegations.

Lynne Wilson and Scott Cookson of Shuffield, Lowman & Wilson, P.A.  Named 2016 Best Lawyers in America

Lynne Wilson and Scott Cookson of Shuffield, Lowman & Wilson, P.A. Named 2016 Best Lawyers in America

ORLANDO, FL —Lynne R. Wilson and Scott A. Cookson, partners of the downtown Orlando law firm of ShuffieldLowman, were recently selected by their peers for inclusion in The Best Lawyers in America© (2016), as published in dozens of city and regional publications in the U.S. including, U.S. News & World Report. Wilson and Cookson are both named in the Real Estate Law section of Best Lawyers.

 
Lynne Wilson

                Lynne Wilson

Scott Cookson

                Scott Cookson

 

 
Wilson is one of the original founders of ShuffieldLowman and an experienced attorney in all areas of commercial real estate transactions, commercial lending, banking and finance. Cookson is an experienced attorney in the areas of transactional, real estate, local government, land use and commercial leasing. Cookson presently serves as City Attorney for the City of Ocoee, Florida.

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which almost 50,000 leading attorneys cast nearly five million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

ShuffieldLowman’s four downtown offices are located in Orlando, Tavares, DeLand and Daytona Beach. The firm is a 34 attorney, full service, business law firm, practicing in the areas of corporate law, estate planning, real estate and litigation. Specific areas include, tax law, securities, mergers and acquisitions, intellectual property, estate planning and probate, planning for families with closely held businesses, guardianship and elder law, tax controversy – Federal and State, non-profit organization law, banking and finance, land use and government law, commercial and civil litigation, fiduciary litigation, construction law, association law, bankruptcy and creditors’ rights, labor and employment, environmental law and mediation.

 

Challenges to a Will or Trust Part I – Undue Influence And The Burden Shifting Presumption

Challenges to a Will or Trust Part I – Undue Influence And The Burden Shifting Presumption

In many disputes involving a change to a will or trust made by an elderly individual, it is alleged that the change to the testamentary document was the result of undue influence. Florida law defines undue influence as “over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower.”

In In re: Carpenter’s Estate, 253 So. 2d 697 (Fla. 1971) the Florida Supreme Court created a burden shifting presumption for claims of undue influence. Under Carpenter if the party alleging undue influence showed the existence of a confidential relationship between the doner and the donee, active procurement of the change or gift in question and that the donee was a substantial beneficiary of the gift, then a presumption of undue influence arose and the burden shifted to the opposing party to provide a reasonable explanation for the testamentary change or gift. If a reasonable explanation was provided, then the burden shifted back to the party claiming undue influence to prove its claims.

In 2002, the legislature altered Carpenter’s burden shifting scheme. Pursuant to Sections 733.1071 and 90.304, Florida Statutes, once the presumption of undue influence arises, the opposing party bears the burden of proving, by a preponderance of the evidence, that the gift in question was not the result of undue influence. Thus, it is no longer sufficient to provide a reasonable explanation for the testamentary change or gift. Once the presumption is raised, a party must prove that the testamentary change was a result of the grantor’s own free will.
 
 


1 Although this provision is part of the trust code, it provides that the presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships, and is, therefore, a presumption shifting the burden of proof under Sections 90.301-90.304, Florida Statutes. Thus, because the legislature has declared that the presumption of undue influence implements public policy, the shifting burden of proof is equally applicable to actions alleging undue influence in the procurement of a trust.