Here’s a very recent probate litigation case, which is also a trust litigation case, which can show you how fast one’s health can deteriorate — and the effect it can have on your estate plan, your last will, and your revocable trust. It also shows you how, after you die, your family members, heirs at law, next of kin, your beneficiaries, and even your ex-wife, can be involved in an inheritance lawsuit and lots of trust litigation. When your health deteriorates rapidly, particularly if you suffer from Alzheimer’s, or progressive dementia, your cognitive abilities, your ability to think, to analyze, to make decisions likewise deteriorates rapidly. Someone can lose the capacity, or have diminished capacity, to sign a will or other estate planning documents. In that case, probate litigators refer to that as someone “lacking capacity” or “lacking testamentary capacity” to sign a last will or a revocable trust. This is true for estate planning documents which are wills, codicils to wills, trust revocation documents, trust restatements, & trust amendments. This case shows you how somebody can sign a valid will on one day, and, due to a decline in health, lack the ability to sign a trust revocation just three weeks later. This case also demonstrates how a trust document may be set aside, or declared invalid by a probate court, due to lack of capacity and undue influence.
BUSINESS OWNER CREATES REVOCABLE TRUST
- Robert was the founder of a private company
- He also created a Revocable Trust in 2006
- He had three adult children & an ex-wife
- Robert was his own trustee of his Revocable Trust (in Florida, revocable trusts are also referred to as “living trusts” or ” revocable living trusts ” )
- After Robert’s death his Revocable Trust became IRREVOCABLE
- On January 2, 2008, Robert had an estate planning attorney create a new last will
- Robert died in July 21, 2010
SEPTEMBER 2007 AMENDMENT TO TRUST
- September 2007, Robert AMENDED his Revocable Trust
- He was no longer the trustee of his Revocable Trust
- He named his EX-WIFE & a bank as the co-trustees (this recent Minnesota opinion from the appeals court does not tell us why he no longer wanted to be trustee. In Florida, Palm Beach trust lawyers would view this with skepticism: most Florida residents who have a Florida estate plan want to be trustee over their own Florida revocable trust. )
- Importantly, the ex-wife was given the power to replace the bank with a new co-trustee. (This is a very important trust power which a lot of Palm Beach trust attorneys write into their clients’ Florida revocable trusts. Part of the Florida estate planning process or your Florida revocable trust, is to try to determine who, if anyone besides yourself, the trust creator, has the power to remove and replace a Florida trustee.)
TRUST CREATOR REVOKES HIS REVOCABLE TRUST — JANUARY 21, 2008
- On January 21, 2008, he signed a document which revoked his revocable trust.
- Or did he…………………………… ?
ESTATE LITIGATION, PROBATE DISPUTES & TRUST LAWSUIT — adult children & ex-wife lawyer up: enter the probate litigators
- after Robert’s death
- The kids fought over the will: filing a probate lawsuit . They wanted a piece of his estate and an inheritance. ( In Florida, adult children are not entitled to an inheritance. There is no right to an inheritance in Florida except in limited circumstances, such as certain rights of minor children and your spouse. Many times, children who were expecting an inheritance from a Florida estate or a Florida trust are disgruntled and disappointed & want to know what their beneficiary rights are to a Florida estate or a Florida trust as next of kin or heirs at law. The question becomes:
Q: are you, or can you be, a beneficiary of the Florida estate or Florida trust?”
- •· the ex-wife filed a similar trust lawsuit over the trust amendment
- •· the ex-wife claimed that Robert lacked capacity to revoke his revocable trust
- •· the ex-wife also claimed that the revocation of his revocable trust was obtained by undue influence —
Q: Who caused the undue influence ? She claimed one of his daughters
PROBATE LAWSUIT SET — TRIAL ON 2008 WILL & TRUST REVOCATION
- In February and April 2012, the probate court held a multi-day trial.
- The probate court ruled on the trust trial in July 2012
TRUST DOCUMENT INVALID ! —REVOCATION OF REVOCABLE TRUST VOID – trust creator lacked testamentary capacity
- In July 2012, the probate court declared that the trust revocation was invalid
- The probate court “set aside” the document where Robert revoked his revocable trust
- the trust court ordered the beneficiary who took trust assets to return the trust assets to Robert’s revocable trust, which was now irrevocable since he had passed away
- Oh yes, the 2008 will was found valid by the probate court– Robert had capacity to sign the will, and there was no proof of undue influence regarding his will.
- The will contest failed.
- The challenge to the last will by the children did not work out: they lost the undue influence lawsuit and the will contest
- Do you know how much time separated Robert’s signing of his 2008 will & his revocation of his revocable trust ? About three weeks.
- The probate court found that there was sufficient proof, and trust evidence, that in that short period of time, his health had deteriorated.
PROBATE COURT FINDS UNDUE INFLUENCE IN TRUST REVOCATION
- The probate court found that Robert lacked the capacity to revoke his Revocable Trust just three weeks after signing his will. (Palm Beach probate lawyers and Palm Beach estate litigation law firms know that many Florida estate planning clients may sign wills and Florida trusts together: at the same time or very near in time. Experienced probate trial attorneys, not just Florida estate planning attorneys who write wills & trusts, but Palm Beach estate lawyers who actually try cases about undue influence, know that one’s health, or mental state, can deteriorate rapidly. This is to particularly true for Florida residents who suffer from Alzheimer’s or progressive dementia. )
- What was the probate court ruling on undue influence based on?
- The probate court also found that Robert was unduly influenced in signing the trust revocation
- Opportunity to exercise influence,
- a confidential relationship
- active participation in arranging the revocation. ( These criteria in Florida trust litigation, and Palm Beach estate litigation, circles are well known by experienced Palm Beach estate litigators and are known as the Carpenter factors — based on a famous Florida undue influence case of that name. The Carpenter case is recited by Palm Beach trust litigators and Palm Beach estate litigators throughout undue influence trials from Stuart, Florida to Boca Raton, Florida all the way to Fort Lauderdale. )