by Clay Roesch | Aug 19, 2015 | Blog |
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.
by Clay Roesch | Aug 13, 2015 | Blog |
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.
by Clay Roesch | Jan 4, 2013 | Blog, Commercial & Civil Litigation |
Whether it’s serving the receptionist at a corporation or an individual under the age of 15 how can you correct your process server’s mistake?
Florida Rule of Civil Procedure 1.070(b) provides that “[w]hen any process is returned not executed or returned improperly executed for any defendant, the party causing its issuance shall be entitled to such additional process against the unserved party as is required to effect service.” In other words, once your process server makes a mistake, you are entitled to have the clerk issue a second summons so that you can effectuate service.
The question that arises when using this process is whether a Plaintiff must obtain a court order before causing the clerk to issue an alias summons. Although there is no clear answer, a few District Courts of Appeals have provided some guidance. For example, in Sunrise Beach, Inc. v. Phillips, 181 So. 2d 169 (Fla. 2d DCA 1965), the Second District approved the clerk’s issuance of an alias summons during the pendency of an appeal of the trial court’s order denying Defendant’s motion to dismiss for improper service. Similarly, in Punta Gorda Ready Mixed Concrete v. Green Manor Construction Co., Inc., 166 So. 2d 889 (Fla. 1964), the Florida Supreme Court approved the use of “insurance summons.” More recently, in Hawk Haven, et al. v. BMO Harris Bank, N.A., Case No. 5D-12-270, the Fifth District affirmed, per curium, a trial court’s order denying a defendant’s motion to quash an alias summons that was issued without a court order. Notably, the trial court has also approved the issuance of the alias summons nunc pro tunc to the date of issuance.
A Plaintiff faced with ineffectual service because of a process servers mistake should avail itself of the alias summons procedure provided by Rule 1.070(b).
