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.
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.
Over the past couple of years, Florida’s Code of Ethics, found at Part III, Chapter 112, Florida Statutes, has been the rare subject of legislative amendments. A recent major addition to the Code of Ethics is the requirement that all constitutional officers complete four hours of ethics, public records, and Sunshine law training each calendar year. At the time of the initial passage of this training requirement, the following individuals were included: the Governor, the Lieutenant Governor, the Attorney General, the Chief Financial Officer, the Commissioner of Agriculture, state attorneys, public defenders, sheriffs, tax collectors, property appraisers, supervisors of elections, clerks of the circuit court, county commissioners, district school board members, and superintendents of schools.
Municipal officers were not included in the 2013 training requirement; however, the law was amended again in 2014 to expand the training requirement to include municipal officers. Therefore, effective January 1, 2015, all elected municipal officers must also complete four hours of ethics, public records, and Sunshine law training on an annual basis. Additionally, beginning on January 1, 2015, all officers will be required to certify that the officer completed the training at the time the officer files his/her annual financial disclosure form.
There are many opportunities for municipal and county officers to compete this training requirement. In addition to live training opportunities occurring throughout the year, there are a number of free or inexpensive resources available including:
– Free video tutorials and audio presentations available at the Florida Commission on Ethics website. All have been prepared by the Commission on Ethics staff. These trainings are free and can be easily accessed at any time from one’s computer by going to http://ethics.state.fl.us (use the left drop down menu); and
– The Institute of Government offers online ethics and Sunshine law training for a nominal fee at http://iog.fsu.edu/events/online_training/index.html.
The Florida Commission on Ethics will continue to post training opportunities as they become available. Please check their website frequently for updates at http://ethics.state.fl.us.
Recently, in report number 2014-30-034, the office of TIGTA reported on an audit that it conducted in which it determined that the IRS was not acting timely on trust fund recovery penalty actions. In particular, TIGTA found untimely actions relating to trust fund recovery procedures including expired assessment statutes, unsupported collection determinations, and incomplete trust fund recovery penalty investigations associated with currently non-collectable cases. According to this study, the actions were either untimely or inadequate in 99 out of 265 cases that were viewed in a statistical sampling. For fifty-nine of these 99 cases, untimely actions were more than 500 days to review and process the trust fund penalty assessment. The report went on that when these assessments are not timely made, the taxpayer’s ability to pay declines, thereby decreasing the probability of collecting the trust fund taxes. In addition, the report states that the government’s interests is not protected if these assessments are overlooked or not timely made. As a result, TIGTA recommended that the IRS emphasize to group managers their responsibilities to better monitor these cases and to insure that revenue officers take timely actions, enhancing communication, and training, and insuring timely completion and adequacy of the systems to take appropriate actions, and to revise the guidance regarding the accuracy of collection determination. In response to the report, IRS officials agreed with all of these recommendations and plan to take compliant action. Therefore, you can anticipate more frequent and more difficult interactions with revenue officers who are now under the gun to see to it that trust fund penalty determinations are finished sooner and are more detailed and accurate.
According to the principal deputy attorney general for policy and planning at the Department of Justice (DOJ) Tax Division, Caroline D. Ciraolo, the DOJ is preparing for an intense crackdown on offshore tax evaders and people hiding assets overseas. Stating that taxpayers should come forward as soon as possible, Ms. Ciraolo said that “Time is of the essence” and “come in now, or face the consequences”.
Ms. Ciraola, a featured speaker at the Federal Bar Association Tax Advice & Controversy Conference, stated that the government’s investigations has extended far beyond Switzerland to several other countries including Barbados, Israel, India, Liechtenstein, Luxembourg and others. She stated that just because there may not yet be any public disclosures should not be interpreted as inaction on the part of the Government. She continued that information is being received and analyzed from a large number of sources. This includes information being turned over by several Swiss banks to avoid prosecution for their roles in the offshore activities. This, in turn, is being used to start new investigations and to target new taxpayer “misconduct”. They are “looking at everything they receive”.
Our experience in preparing offshore voluntary disclosures has shown us that the required forms contain questions about who assisted in setting up accounts both here in the United States and abroad, the advice given, the dates and places of meetings, any “facilitators” and so forth. This also is being reviewed by the IRS for “leads” as to other banks and persons of interest.
To avoid possible criminal penalties and civil fraud penalties, taxpayers should consider participating in one of the different offshore voluntary disclosure programs and to do so sooner than later. As more time passes, the penalties are becoming stiffer. Last July, the IRS announced that anyone with an account at or with so-called “listed” banks or persons, such as UBS (the list can be viewed at the IRS website), would now have to pay a 50% offshore penalty instead of the usual 27 ½% penalty. To make things worse, this 50% penalty would apply to all of the taxpayer’s offshore accounts even if the others were at non-listed banks. Prior to the 27 1/2 %, the penalty was 25%. So as time passes, the sanctions are getting potentially worse.