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 2nd 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.