SONS SUE DAD’S COMPANION OVER BANK ACCOUNTS & FAMILY TRUST —- estate litigation over power of attorney, joint bank accounts and undue influence

Uncategorized • Feb 19, 2014

This recent Arkansas probate litigation case shows you what type of probate litigation can erupt after one spouse loses another spouse and has a “friend” or “companion.” Trust lawsuits, changing bank accounts, buying condos, and powers of attorney are at the center of this inheritance lawsuit involving Dad’s companion, a trustee of his trust and 2 sons who are alledged to have taken a pay on death bank account— while dad was in hospice care. See, these probate lawsuits don’t occur just in Florida.

DAD LOSES HIS WIFE AND NOW HAS A FRIEND OR COMPANION

Mr. Campbell (“Dad”) lost his wife in 1999
In 2003, Mr. Campbell met Ms. Graf, and the two remained close companions until his death. She was his friend.
Mr. Campbell had a will and a trust
He had 2 children, Jerry and James
He passed away on December 15, 2006, at the age of ninety-two.
His will left everything to his Family Trust.
Ms. Graf was named as the successor trustee of the family trust

AMENDMENTS TO FAMILY TRUST —- companion inherits condos….then gets cut out & disinherited (before dad died………..)

Twice in 2003, Mr. Campbell made amendments to the trust
He left a condo to Ms. Graf by the first trust amendment
By the 2^nd Trust Amendment, he left his companion 2 condos
On January 10, 2005, he again amended the trust, this time deleting the companion as a beneficiary under the trust and leaving all of his property to his 2 sons.

GUARDIANSHIP ACTION FILED — Dad’s competent

On March 9, 2005, his 2 sons filed a petition for guardianship of Mr. Campbell, alleging that he lacked capacity to manage his affairs. (Note: in Florida, you would file a petition to determine incapacity along with a “companion” petition for appointment of guardian. You have to disclose whether there are any Florida trusts, or Florida powers of attorney.)
Mr. Campbell’s (Dad’s) deposition was taken (Note: in Florida guardianships, the Florida Probate Court appoints a Palm Beach guardianship lawyer to look out for and protect the person who is the subject of the Florida guardianship)
He was evaluated by a neurologist (Note: in Palm Beach guardianships and in Ft. Lauderdale guardianships, the probate court will appoint and Florida guardianship examining committee who will evaluate the person and file written reports)
He was found to be competent ———–NO GUARDIANSHIP
His 2 sons voluntarily dismissed the guardianship petition in October 2005. (note: in Florida, anyone who files a Florida guardian petition, or a petition to determine incapacity, in bad faith, will have to pay attorneys fees for the guardianship )

DAD CHANGES FAMILY TRUST TERMS —- multiple times !

During the guardianship case, Mr. Campbell changed his family trust again !
Dad executed a fourth amendment to the trust
He left 1/6 of his estate to each of six beneficiaries, including his companion and each of his 2 sons

DAD AND FRIEND HAVE FINANCIAL TIES (CONDOS, LOANS AND JOINT BANK ACCOUNTS)

Mr. Campbell and his companion bought a condo together, each paying $21,000
They took out a loan for the balance of the price of the condo
They had a joint bank account
Ms. Graf bought Dad’s half of the condo for $21,000 and moved in.
What did Dad do with the $21,000 he received from his friend ? He put it into his joint bank account with her !
Mr. Campbell deposited $11,000 of that payment into their joint account, and Ms. Graf used the money to pay expenses for the condo.

DAD CHANGES BANK ACCOUNTS !!

One of the “trends” that Palm Beach estate litigators who are involved in Palm Beach probate litigation have noticed is the attempt to control, or obtain, joint bank accounts and financial accounts. While people do try to get parents who have a Florida Estate Plan to change the estate plan or last will or Florida trust, many people want to be put on the title of a bank account, or want to be a joint owner.

Dad had several bank accounts at Regions Bank
He had a POD bank account, also known as a Pay On Death account or Totten Trust — payable to his companion on his death
He also had a pay on death $25,000 CD or certificate of deposit

DAD’S FRIEND ALLEDGES SONS CONVERTED BANK ACCOUNTS (PAY ON DEATH AND CD )

It was the funds from these Regions accounts that the companion alleged that the 2 sons had converted — (in Florida, conversion is the wrongful use or control over someone else’s property, such as taking money from a bank account)
The Probate Court ordered the 2 sons to give the money back !
How’d the sons get the POD bank accounts ? They used a neighbor and a power of attorney !

POWER OF ATTORNEY USED TO GET BANK ACCOUNTS —- while dad is in Hospice

Dad gave a neighbor the power of attorney for a condo sale
By December 2006, while dad was in hospice care, his sons contacted the one with the power of attorney: they wanted her to go to the bank with them !!
They changed the ownership of several of Mr. Campbell’s accounts.
Sons were added as co-owners of a checking account (containing approximately $41,000 at that time), which was payable on death to the friend; AND as co-owners of the bank certificate of deposit CD, worth $25,000.

SONS SUE DAD’S COMPANION: ARGUE SHE ISOLATED DAD AND BREACHED HER DUTIES AS TRUSTEE

Sons sue Dad’s companion on February 20, 2007
Sons claim that she had breached her duties as trustee of Dad’s trust,
That she had “taken control over him, isolating him from family members and others.”
They argue friend exerted undue influence
Dad’s friend fights back ! She counter sues the sons, saying they unlawfully converted $78,000 of the cash assets that belonged to the Estate, and thus to the trust, which was the sole beneficiary of the estate. The probate court ordered the sons to return some money, but the appeals court sent it back to the probate court with instructions.