When Does Influence Become UNDUE and WRONG and The Basis for Voiding a Will?

Posted By on July 29, 2015

Your mother or father might be influenced in making their estate planning decisions by information that they get from their lawyer, or their CPA, or their friends. Your brothers or sisters may throw their two cents into the decision-making about how things should be be distributed after both parents pass away.

Your elderly parent may live with a relative or caretaker and become very close with them. They may rely on a son or daughter or grandchild for love, care, and support as they are no longer able to care for themselves independently. Both parent and caregiver may be influenced, each by the other, in these living arrangements. In most families, family members get in each others business, right?

Influence isn’t always a bad thing. Seeking the counsel of others for an important decision, for instance, is wise. However, being influenced by others can be a bad thing when someone oversteps their bounds and successfully profits from it.

Two older men enjoying fishing from boat one man is standing and raising hat while showing the fish he just caught

Undue influence is fraud. If proven to a probate court, the Last Will and Testament that resulted from this undue influence can be voided and tossed out. How things are distributed in the decedent’s estate at that point will depend upon the provisions of a prior will or the Florida intestacy laws.

When does influence become UNDUE and WRONG and the basis for voiding a Will?

In deciding whether or not to invalidate a challenged will based upon undue influence, the court will look at the evidence provided of conduct on the part of the testator (deceased parent) and the person alleged to be fraudulently influencing things. Part of that review will be the conduct of the people; another will be the will itself. How did the person suspected of undue influence profit from their fraudulent action? Or did they?

The personal representative of the estate that introduced the challenged will for probate will be expected to defend it as a legal party in the probate court proceeding. The person contesting the will on the basis of undue influence has to provide this evidence of wrongdoing (in the form of witnesses and documents).

Conduct that is considered undue influence over someone in the making of their will includes:

  • Over-persuasion
  • Duress
  • Force
  • Coercion
  • Artful contrivances.

This conduct can occur without recourse unless it is successful in moving the testator to write the will as desired. For the will contestant to be successful, they also have to show:

  1. Free agency and Will power of the testator has been destroyed; and
  2. The resulting will is a product of the will of another, not that of the decedent.

Or, as one court explains, “When a will is challenged on the grounds of undue influence, the influence must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.”  Raimi v. Furlong, 702 So.2d 1273, 1287 (Fla. 3d DCA 1997).

Case Example: Loving Granddaughter Isn’t Committing Fraud

Several years ago, a 90 year old woman passed away in Miami after living with her granddaughter here in South Florida for many years. In her Last Will and Testament, she let almost all of her estate to this granddaughter and nothing to her other two grandchildren. These two grandsons filed a will contest. They lost because they failed to meet their burden of proof of undue influence.

Evidence provided to the probate court did show that there was a “close bond” between the elderly woman and her granddaughter. Evidence was also entered into the proceeding that Grandmother had told her friends that she trusted her granddaughter and wanted to give her a power of attorney in case it was needed.

However, the probate court held that while there may have been a “confidential relationship” between the two, this doesn’t allow anyone to presume bad behavior or fraudulent influence. In this case there was absolutely no evidence of undue influence by the granddaughter.

Indeed, evidence was provided that: “… (a) the deceased selected the attorney to draft the will; (b) the attorney arranged the execution of the will and the audio-videotaping thereof; (c) decedent’s attending physician witnessed the execution of the will; (d) at the time of execution, decedent understood the extent of the estate and the object of her bounty; (e) the will and codicil were retained by the attorney; (f) the primary beneficiary (appellee) did not have possession of the will or codicil; (g) appellee had no knowledge of the contents of the will and codicil prior to decedent’s death.”

In re Estate of Robertson, 372 So.2d 1138 (Fla.3d DCA 1979), cert. denied, 383 So.2d 1201 (Fla. 1980).

Do You Suspect Undue Influence in Your Parent’s Will?

If you think that your mother or father was a victim of undue influence, then your remedy is to file a lawsuit challenging the suspicious Last Will and Testament in court. A lawsuit has to be filed in order for justice to be done. You will have the burden of tracking down the evidence to prove your case. Will contests based upon undue influence are complicated; an experienced Florida probate lawyer to help you can be invaluable.

If you have any questions about undue influence upon your parent, please do not hesitate to call us.

For more information check out our probate litigation page.

3 Signs that Mom or Dad Were Unduly Influenced in Executing Their Last Will and Testament

Posted By on July 22, 2015

After your mother or father passes away, it’s difficult enough to deal with your grief over their passing. Losing a parent is a life-altering event. For some, however, things get worse and the emotional burden becomes almost overwhelming when they learn about their parent’s Last Will and Testament.

An unequal distribution of their parent’s property between the children, or the surprising distribution of a substantial part of their estate to a third-party, brings with it suspicions that someone may have interfered with their parent’s true wishes on what should happen to their property after they pass away.

For these grieving children, it is a horrible thing to realize that their deceased parent may have been a victim of undue influence.

Webster County, Nebraska courthouse courtroom 2

What is Undue Influence?

Undue influence is a kind of fraud. If it is proven to exist in a probate matter, the will (or trust) in question can be invalidated by the probate judge. It happens when a testator is the victim of over-persuasion, duress, physical force, coercion, or “artful or fraudulent contrivances to such a degree that the free agency and will power of the testator is destroyed.” ln re Carpenter’s Estate, 253 So. 2d 697 (Fla. 1971)

Three Signs that Your Parent May Have Been Unduly Influenced


1. Your Parent Lived Far Away from You

Today, parents and children are likely to live if not in different cities within the same state, then in different states altogether (or even different countries!). Not having your mother or father nearby for frequent visits means that kids aren’t able to be involved in their parent’s daily activities. Situations where there is a distance between parent and child create a greater opportunity for a third party to unduly influence the parent to name them as an beneficiary in their will.

2. The Health of Your Parent at the Time He or She Signed the Will

Parents that are mentally sharp and physically fit at the time are much less likely to become victims of undue influence than parents who are weakened by illness or debilitating conditions (e.g., arthritis). Parents who may suffer from mental challenges such as progressive dementia (where they are sharp in the morning but not so mentally alert by bedtime) are also more likely to be victimized.

3. Sudden Changes in the Disposition of the Estate Prior to Death

Another reason to suspect undue influence is if your parent changed a long-standing estate plan (like equal shares to all the children) shortly before their passing. If there is a big change in who gets what, or how the estate as a whole is being distributed under the will, then maybe there was some kind of undue influence involved in the last minute Last Will and Testament.

The Lamberson Example

In re Estate of Lamberson is a case that provides a cruel example of all these factors. Here, Mr. William Lamberson and his wife were living alone in their home when it became clear that they could no longer take care of themselves. At 89 years of age, Mr. Lamberson was challenged with chronic illness; his wife was similarly infirm.

A lady named Hazel Bulla came to help them in December 1979. Mr. Lamberson had drafted his Last Will in Testament in July 1979, with the residuary of his estate to Dr. Harold Lamberson and other relatives.

Unfortunately, Hazel became sick herself and couldn’t continue to help the elderly couple. So, an office worker in the Lambersons’ podiatrist’s office named Mary Schwartz appeared on the scene to take over for Hazel. There was no past history between them; Mary met the couple as they came for doctor visits.

Mary kept working for the doctor. She also got William Lamberson to sign a contract with her where she was paid $1500/month for her work in helping out the Lambersons. He also signed a Power of Attorney that let Mary handle their financial affairs and act as their guardian.

Mary Schwartz moved the Lambersons into her home. She never told anyone in the Lamberson family about what was happening with the couple. Mary never told the Lamberson’s friends where they were living, even though the friends were wanting to know and to visit.

In January 1980, Mary took William Lamberson to her attorney’s office, where she told the lawyer how the will should be prepared (who got what), brought in her friends as witnesses, and after the will was signed, kept the document in her possession. Mary didn’t tell anyone in the Lamberson family about this.

The next month, both Mr. Lamberson and Mrs. Lamberson passed away. One particularly cruel fact: Mary didn’t bother to tell Mr. Lamberson that his wife had died; he lingered on for two weeks without knowing about his wife before he passed.

Mary promptly entered the will in her possession into probate (where she got everything). The beneficiaries of the prior will contested it.

At trial, it was held as a matter of law that Mary Schwartz exercised “improper and undue influence” upon the decedent William Lamberson in the procurement of the Will. The will that Mary had entered into probate was disregarded by the court, and the prior 1979 will was probated.

What To Do If You Suspect Undue Influence

If you think that your parent may have been the victim of undue influence, then you must formally challenge the will in Florida probate court. Undue influence can be difficult to prove, and having an experienced Florida probate lawyer to help you gather your witnesses and documents to support your challenge is vital.

If you have any questions about undue influence upon your parent and their last will and testament, please do not hesitate to call us.

For more information check out our probate litigation page.

Will Contests Based Upon Mistakes in Drafting the Will

Posted By on July 15, 2015

Usually, people hire lawyers to have their Last Will and Testament prepared and executed as a protection against errors in writing their Will and against anyone challenging their decisions about who should get what after they’ve passed. Parents know their kids: getting a Will written may mean a lot less squabbling when the time comes to divide assets. Going to an attorney for estate planning is a great idea. We recommend it!

However, this doesn’t mean that everyone takes this precaution — and if they do, it doesn’t guarantee that an error won’t occur that will impact the viability of their written directive on how their property is to be distributed after they’re deceased.

What happens if there is a mistake? Sometimes, that error dooms the Will; mistakes can void a Will in Florida.

Scales of Justice (PSF)

Pursuant to Florida law, if there is a mistake in drafting a Will, or a part of the Will – like a codicil – then the law can deem it void. This is according to Florida Statute 732.5165 which states:

A will is void if the execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons. If the revocation of a will, or any part thereof, is procured by fraud, duress, mistake, or undue influence, such revocation is void.

What does void mean under Florida law?

When a legal document in Florida is “void,” it means that it is given no legal respect whatsoever. It’s got no power. A void Will, filled with words, equals a blank piece of paper. Whether or not a Will is void must be decided by a judge, and a formal court ruling (order, judgment) will be filed in the probate records deeming the probated Will void and superseding any legal effect it once had.

Mistakes: “He just forgot!”

Not every mistake will destroy a Will, even if seems to be an unfair result. For instance, in the case of Azcunce v. Estate of Azcunce, Mr. Rene Azcunce went to his lawyer and made out a Will which included a trust; beneficiaries being listed as his wife (as “surviving spouse”) and his three kids, Lisette, Natalie, and Gabriel. A few months later, Mr. Azcunce added a codicil to the Will. Three years later, he added another one. Never did he consider that he might have any more kids who needed to be included there, and no language was written in either the Will or its codicils about any more children.

Within a year of Mr. Azcunce writing that first Will, however, his daughter Patricia was born. And six months after that second codicil, Mr. Azcunce died of a heart attack at the young age of 38. What about Patricia?

After the Will and its codicils were admitted to probate, a challenge to the Will was filed on behalf of the child Patricia for a statutory share of her father’s estate as a pretermitted child. Patricia lost.

The mistake in not adding Patricia’s name to his Will (or those codicils) did not void the Will. There was no ambiguity found in the Will documents to allow for witness testimony to explain things (parol evidence). Here, the court found that if the lawyer was found to have committed malpractice in not making sure that Rene Azcunce remembered to include his baby daughter in his Will, then that was not a mistake which would void the Will.   Azcunce v. Estate of Azcunce, 586 So.2d 1216 (Fla. 3d DCA 1991).

Mistakes: “It’s not what he really wanted!”

If a mistake is made in drafting a Will insofar as the reasons for executing its provisions, and not in the wording of the documents, then that mistake still may not be enough for cancellation or voiding of the Will. Forsythe v. Spielberger, 86 So.2d 427 (1956)

For example, in the case of York v. Smith, a man believed that his child was not really his own biological offspring and for this reason, did not include the boy in his Will. After he passed away, the child challenged the Will arguing his right to inherit and that his father had made a mistake in failing to name him as a beneficiary. They were father and son: if the father knew that, he would have included his son in the Will.

This did not matter. The court held that without proof that the father’s testamentary capacity had been crippled in some way, causing him to fail to include the child in his Will, nothing changed. Without evidence of some kind of “insane delusion” or other lack of testamentary capacity, the challenge to void the Will based upon the mistake was held to be insupportable. The will stood as written, the mistake did not void the Will. York v. Smith, 385 So. 2d 1110 (Fla. Dist. Ct. App. 1980).

When Will a Mistake Void the Will?

Both these cases seem very unfair, don’t they? Mistakes can void a Will under Florida probate law; however, as these two examples demonstrate, it is a difficult case to prove to a probate court judge. Florida law will give respect to the wishes of the decedent and the language of the Will is given great honor, even if it seems unfair and unjust to many. (See our earlier post discussing how probate judges are zealous in protecting what they believe to be the last wishes of the deceased as written in their Will.)

However, if the Will contest can provide evidence that there was something more involved in the situation that caused the mistake — something like fraud, or undue influence, or mental incapacity (what the York court called “insane delusion”) — then the mistake may result in a voided Will. We’ll be discussing these situations in future posts.

You May Also Be Interested In: Probate Litigation

Will Contests: Challenging a Florida Will to Get It Thrown Out

Posted By on July 8, 2015

When someone passes away, any property titled in their name immediately becomes part of their “estate.” An estate is a legal entity created under the law to help protect both real estate and personal property (things like jewelry, furniture, guns, etc.) as it is transferred to those who stand to inherit it. If the person dies without a valid will, then Florida law provides for the disposition of the property by way of the “intestacy statute” in place that explains who gets what if there is no valid will.

Image: Last Will and Testament of William Shakespeare (dated 1616)

For most people in Florida with significant property (a house, vacation properties, a car or two, etc.), they will likely have had a sophisticated estate plan in place where they’ve had drafted and executed one or more documents, including a Last Will and Testament. This will define who gets what (the beneficiaries) as well as who is to handle the responsibility of the estate itself (the personal representative), among other things.

What the Last Will and Testament provides does not have to be shared with anyone under Florida law. Which means that provisions in a will can come as a big (BIG) surprise to relatives and friends who are surprised or even shocked to learn how the decedent has chosen to dispose of his/her property.

Surprise or shock is one thing. However, it’s a more serious situation when there is a suspicion that some kind of wrongdoing has happened — that there has been fraud, duress, a mistake, or even undue influence.

  • What if you suspect that some kind of bad act(s) helped create these will provisions, because they just don’t align with what you know to be the decedent’s real wishes?
  • What can you do? After all, the will is a formal document, and it’s been filed at the courthouse, right?

Challenging a Last Will and Testament

When a beneficiary or other interested party thinks that there has been some wrongdoing which has resulted in the Last Will and Testament being filed and accepted for probate in Florida, then that person can challenge that will on a number of bases and ask the judge to review and consider the circumstances before the property is distributed. If the challenge is successful regarding certain provisions of the will, or the will in its entirety, then the result is an official court judgment that VOIDS that language. The document will not have any legal authority, and the estate will proceed in distributing the property under the terms of another document or under the Florida intestacy statute.

Florida Statute 732.5165 states:

A will is void if the execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons. If the revocation of a will, or any part thereof, is procured by fraud, duress, mistake, or undue influence, such revocation is void.

Will Contests are Lawsuits

This challenge to a will results in a litigation commonly called a “will contest.” Florida Statute 732.518. It is a formal proceeding filed in the same courthouse where the will has been filed. It is an “adversary proceeding” in the probate court, and it is a full-fledged lawsuit. There are parties on both sides. There is discovery (requests for documents, interrogatories, depositions). There are hearings. If issues are not resolved prior to trial, there can be a full jury trial on the merits of that will contest.

Presumptions Will Apply That Judges Must Follow

However, before anyone proceeds with the emotional battle of a will contest, they need to know that this isn’t the same kind of lawsuit as one that is filed for a breach of contract or for personal injury damages after a car crash. The will contest has special considerations that create hurdles for those challenging the will to jump in order to prove their case.

It’s been the law of Florida for many years that Florida judges must make every effort to respect the wishes of the person who has died and whose property is being transferred via probate. This means that the Last Will and Testament that has been entered into probate will be given due respect and consideration by the court as the last wishes of the decedent.

As explained by a Florida judge way back in 1927, “ … wills should be given effect except on clear showing of deception, undue influence, or other fraud or disposition of property contrary to law.Hamilton v. Morgan, 112 So. 80, 93 Fla. 311 (1927), quoted with approval by the Florida Supreme Court in Estate of Carpenter, 253 So. 2d 697 (Fla 1971).

Even someone who is known to be mentally ill can make a valid Last Will and Testament that the probate judge will honor. This is because he or she is considered to have the “testamentary capacity” to make their will if the will was executed in a lucid interval, and despite the reality that the person is diagnosed with a mental illness.  This is also true for anyone who is an alcoholic or drug addict, or suffering from dementia. Coppock v. Carlson, 547 So.2d 946, 947 (Fla. 3d DCA 1989) rev. denied, 558 So.2d 17 (Fla.1990).

For instance, in the Coppock case, even though the decedent was elderly and had  “… delusions about his physical prowess… ” the challenge to his will failed because there was evidence – which was undisputed  – that he kept his appointment with his lawyer about the will by himself; he appeared of strong mind at the time, and he properly executed his will.  However, no evidence was presented by the challenger that at the time that he went to the office to finalize the will that he “…lacked the ability to understand the nature and extent of his property, the natural objects of his bounty, or the general process of will-making.”

Which means that the Florida judge must legally rule that the contested will is okay as it is, unless the challenger comes forward with significant admissible evidence to prove their challenge is proper, and that the wishes of the decedent as shown in the will itself, should be disregarded.

How To Win a Will Contest in Florida

Therefore, in order to win a will contest in Florida, the challenge must be based upon strong evidence that is autheticated and admissible. The challenger must be willing to file this challenge as a formal lawsuit in a Florida court. And, the challenger must be willing to work with their Florida probate lawyer in the litigation process of finding witnesses and documents that support and prove one of the elements of Florida Statute 732.5165.

In upcoming posts, we’ll delve into the different bases for challenging a Florida will — fraud, undue influence, testamentary capacity, and more — as well as how the challenger’s burden of proof can be met and has been accomplished in past Florida court cases and legal precedent.

For more information check out our probate litigation page.

Removal of a Florida Personal Representative: Party Named in the Will vs The Party Appointed by The Court

Posted By on July 1, 2015

In the state of Florida, your last wishes as documented in your Last Will and Testament are given great respect and honor under Florida law. Both in Florida statutes passed by the Florida Legislature as well as Florida case law coming from court opinions, the decedent’s decisions and declarations are respected whenever possible. This is especially true for the person that you choose to act on your behalf in transferring your property to your beneficiaries after you’ve passed away.  Your choice of Personal Representative in Florida will, more often than not, be the person who ultimately gets appointed.

It gives comfort to many writing their wills and doing their estate planning here that the decision they make on who acts as their Personal Representative (in other states, sometimes called “executor” or “administrator”) will be protected by the courts when the time comes — especially if there are worries about family members not getting along, or if there’s a lot of property or creditors involved and administration of the estate will be a big job.

As one landmark Florida court opinion explains, “[t]he removal of a personal representative chosen by the deceased is a drastic action and should only be resorted to when the administration of the estate is endangered.” In re Murphy’s Estate, 336 So.2d 697, 699 (Fla. 4th DCA 1976).

Can The Personal Representative Be Someone Other Than The Person Named in Your Will

However, the personal representative appointed to carry out a Florida estate, even a sizable estate, is not always the one named in a Last Will and Testament.  There are times when a person dies without a will here in Florida, and there is no one named to serve in the job by the person who is passed away. Other times, the person named in the will does not meet the qualifications required to serve in a fiduciary capacity, such as convicted felons or persons under 18 years old.  There are also situations where the person died with a will or other estate planning, but none of these documents meet the legal requirements of will under Florida law.  A void will or invalid will is treated under Florida law just the same as if the person died without a will, or “intestate.”


Under the Florida intestacy statute, there is an order of preference in appointment that guides who the probate court will appoint as Personal Representative, when there is no will.

What Law Controls The Removal of a Florida Personal Representative?

Under Florida law, there are certain situations where a personal representative can be fired from the job, or legally “removed” from the position. Under Florida Section 733.504, there are twelve (12) different bases for removing a personal representative from their post.

These legal bases for removal of a personal representative include things like having a conflict of interest with the estate, or making decisions about the estate’s assets that are so bad that they are considered wasteful or irresponsible.

Anyone who has an interest in the estate – which can be both someone who is suppose to inherit property as well as a creditor who is due payment – can file a formal adversary proceeding with the Florida probate court, asking that the personal representative be removed from the position.

Are Court Appointed Personal Representatives Treated the Same as The Party Named In the Will?

In situations where the probate court judge has decided who should act as personal representative of an estate, the protections given the person appointed to the job are not the same as those enjoyed by an executor. The protections for an executor exist because of respect for the person who has passed away.

As one Florida judge explains, “It must be remembered we are dealing here with an executor appointed by the decedent in his will, not an administrator appointed by the court. The removal of a personal representative chosen by the deceased is a drastic action and should only be resorted to when the administration of the estate is endangered. ”  See, Estate of Murphy. 

Florida courts have long recognized that personal representatives make mistakes and sometimes intentionally do bad things. When the court has been responsible for giving that person the job of taking care of the estate, then the court will find it much easier to remove that person as administrator. There is no need here to honor the decedent’s wishes in these cases, because administrators have not been appointed as personal representatives by the deceased person.

If the probate judge gave the personal representative the job, then the judge may be much more willing to replace that person as personal representative than if he or she were serving as executor. In Florida, court-appointments are not treated the same as appointments made by the testator. Vaughn v. Batchelder, 633 So.2d 526, 528 (Fla. App.1994).

Florida Statute 733.504

However, all personal representatives will be allowed to stay in that position of control over the estate unless Florida Statute 733.504 (the removal statute) is met. This law does not distinguish between executors or administrators. It applies to all personal representatives.

The key here is meeting the burden or providing evidence that one of the bases of the Removal Statute exists, and then looking to the probate judge’s discretion.

The judge is giving wide berth in controlling who acts as a personal representative of a Florida estate. If an interested party can show that the person the judge placed into the job of personal representative should be removed based upon Florida Statute 733.504, then the judge is given great legal discretion in deciding what to do and his decision will be left unchanged by the reviewing courts unless some kind of rare abuse of that discretionary power is shown.

How to Remove an Administrator of a Florida Estate

A Florida probate lawyer can help interested parties seeking to remove an administrator as personal representative in a few legal steps. First, the removal request must be filed and the movants must provide evidence under Florida Section 733.504 that there is a legal basis to remove the person. Second, a hearing must be scheduled where evidence is presented and arguments are made.

If the court appointed the individual as personal representative, there is no consideration to be made of the decedent’s preferences here. The probate judge can consider the evidence with the arguments of counsel, and order the replacement of the personal representative with a new administrator or administratrix “… if he interferes with the proper administration of the estate, causes a waste of assets, or meets any of the conditions specified in the statute”. Pontrello v. Estate of Kepler, 528 So.2d 441 (Fla. 2d DCA 1988).

For more information, check out our probate litigation page.

Removing a Florida Personal Representative for Making Bad Decisions & Costing the Estate Money

Posted By on June 24, 2015

As we’ve already covered in our series on removal of Florida Personal Representatives, it doesn’t matter if the beneficiaries of a Florida probate estate don’t like the person who is appointed to oversee the estate’s administration. Under Florida law, the “personal representative”, the person or persons who are appointed by a probate Judge to fulfill the decedent’s final wishes, aren’t responsible for meeting the approval of the heirs, beneficiaries, creditors, or other interested parties of the estate.

Instead, under Florida probate rules, court precedent and Florida statute, the personal representative’s job is to complete the probate process by determining all of the estate creditors, paying all of the lawful and timely presented debts, and distributing the estate property to the beneficiaries.

In fact, Florida personal representatives have a fiduciary duty focused upon the effective administration of the estate (even though that duty inures to the benefit of the estate creditors and beneficiaries), but they don’t have a duty of meriting the approval of those who are owed money or who are inheriting from the estate. Removing a personal representative by unhappy and dissatisfied beneficiaries isn’t easy to accomplish and can only be done if one of the provisions of Florida Statute 733.504 is met.

Among the reasons listed for removing a personal representative (the “P.R.”) is when the P.R. is “wasting or maladministrating the estate.Florida Statute 733.504(5).

What do these terms mean — how does a Florida P.R. “waste” or “maladminister” an estate?

Is there a Presumption that the P.R. Acted Appropriately?

Before moving forward with any action against a personal representative, it’s important to know that courts will give the personal representative favor here; the judges will consider the decedent’s last wishes to be something honorable and to be respected, and the person that the decedent chose to administer their estate after their passing is a choice the courts will try to maintain, absent a legitimate reason to the contrary. As one Florida court explains, “The removal of a personal representative chosen by the deceased is a drastic action and should only be resorted to when the administration of the estate is endangered.In re Murphy’s Estate, 336 So.2d 697, 699 (Fla. 4th DCA 1976).

Moreover, the trial level judge in the Florida probate court will be given great respect by the reviewing courts in his or her decision to remove a personal representative or keep them in the job. Appeals courts will change the decision of a probate court judge only if there is clear evidence presented to them that the probate judge abused his or her discretion when their decision was made. If abuse by the probate judge cannot be shown, then the judge’s decision will stand.

Can You Remove a P.R. for Simply Making a Bad Decision That Costs the Estate Money?

Beneficiaries may be very upset to learn that the executor or administrator made a bad decision regarding estate assets and ended up costing the estate money. That is not enough to have them removed. If the personal representative makes a responsible and reasonable judgment call under the circumstances, then that’s enough to meet fiduciary duty requirements.

Consider the case of Gresham v. Strickland, 784 So.2d 578, 580 (Fla. 4th DCA 2001), where millions were lost to the estate and the removal action failed.

In Gresham, a Florida man died in a train accident in South Carolina. His daughter Jo Ann was appointed personal representative of his estate and she promptly hired a law firm to sue Amtrak (and others) in a wrongful death action on behalf of the estate. (In Florida, only the estate through the personal representative can file a wrongful death action.)

Negotiations began between Jo Ann’s lawyer and the defendants. There was an offer made where the defendants would sign an admission of liability if Jo Ann would sign a waiver of seeking punitive damages by the estate. Jo Ann’s lawyer wrote an attorney hired to represent five beneficiaries (the children of the decedent’s second marriage; he also had two kids from his first marriage) seeking their support for this deal. He explained that his plan was to file a wrongful death action in Florida and then to pursue a survivor’s action in South Carolina.

The five beneficiaries agreed through their lawyer, and Jo Ann’s attorney filed the wrongful death case in Florida and got a $2.8 million verdict for the estate and beneficiaries, each beneficiary recovering $400,000. See Nat’l R.R. Passenger Corp. (Amtrak) v. Ahmed, 653 So.2d 1055 (Fla. 4th DCA 1995).

Here’s when things went bad: that survivor action filed in South Carolina was not successful. The defendants got a summary judgment there based upon res judicata of the Florida action. When the five beneficiaries learned that another family who lost a loved one in that train crash got $6.1 million in compensatory damages and $50 million in punitive damages, they sued their lawyer. Jo Ann joined them as personal representative, and she sued her lawyers, too.

The beneficiaries failed here, too. The Florida court ruled that what they should have done was seek the removal of the personal representative if they didn’t like the idea of waiving the punitive damages claim. Their lawyer didn’t do anything wrong, this wasn’t malpractice on his part.

However, the court also warned that this removal action probably would not have been successful either, because:

“… it would be nothing but sheer speculation as to whether a trial court would agree or disagree to remove the personal representative for a litigation strategy decision made in consultation with her attorneys. Indeed, no case has been cited to us holding that disagreements over litigation are grounds for removal of a personal representative.”

Removal of Florida Executor is Hard to Achieve

As you can see, the removal of a Florida personal representative is a complicated and difficult endeavor. Thus, if you are an heir, beneficiary, creditor, or interested party to a Florida estate and you think that the removal of a Florida personal representative is warranted, then conferring with an experienced probate lawyer to determine your options and how best to proceed is a must.  Most lawyers who represent interested parties in estate administrations, like our office, will offer a free initial consultation.

For more information on litigation related to Florida personal representatives, check out our other articles that include:

Removal of Florida Personal Representative for Conflict of Interest with Estate

Posted By on June 17, 2015

A personal representative in Florida is the person who represents the estate of a deceased person and who is tasked with overseeing the transfer of the decedent’s property to beneficiaries.  The personal representative is also responsible for seeking out and notifying potential creditors of the estate that probate proceedings have commenced.

Personal representatives are sometimes nominated for the position prior to the decedent’s death, in their Last Will and Testament.  Becoming the personal representative of a Florida estate is a serious undertaking. One should not take on the role of personal representative without fully comprehending how stringently their actions will be monitored.

What might seem like an advantageous property sale, loan, or other transaction that benefits both sides, could be seen as self-dealing when brought to the attention of the careful eye of the local probate court.  Personal representatives of Florida estates can be removed from the position – and potentially surcharged for any damages incurred – if they are found to have a conflict of interest with the estate.

Personal representatives can be removed for conflicts of interest with the estate.


Florida Judges Respect the Decedent’s Choice in Personal Representative

Once someone agrees to act as personal representative in accordance with the wishes of the person who has passed away, the process moves forward under established procedures.  The personal representative is confined to act only according to these procedures, and must petition the court for any extraordinary authority required in carrying out the estate’s affairs. All creditors and/or beneficiaries may not agree with every decision the personal representative makes, or the speed at which he/she makes them, and it’s not uncommon for complaints to be voiced.

However, those complaints may not be enough to get the personal representative out of power. Even if every single beneficiary despises the personal representative, and they all agree he should be fired, the unanimous vote of all beneficiaries and creditors alone will not get a personal representative removed in Florida.  They must voluntarily resign, or be removed for cause.

Complaints About the Appointed Personal Representative: It’s Not Easy to Get Them Fired

In Florida, judges will make every effort to respect that choice designated in the person’s Will: there is a heavy burden of proof to be met by anyone who wishes to challenge and remove someone who is representing an estate and acting as personal representative is not easy to do.  As a general rule, probate court judges have no discretion on who is appointed personal representative of the estate, they must fill that position with the person designated for the job by the testator in the will.  In re Estate of Miller, 568 So.2d 487, 489 (Fla. 1st DCA 1990).

However, there is a Florida law in place that provides for the removal of a personal representative and if the requirements of this law can be met, then the challenge to the personal representative can succeed and that person terminated from the job.  This law, Florida Statute 733.504, provides 12 different legal bases for removing a personal representative.

Among these twelve bases for removal is Florida Statute 733.504 (9), which states:

“Holding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole. This cause of removal shall not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in this code.”

Conflicting or Adverse Interests Against the Estate? You Better Have Strong Evidence

Anyone with a legal interest in the estate has standing to challenge the personal representative under this section of the removal statute. However, there will need to be sufficient admissible evidence to show more than the person has an interest in the estate that is adverse or conflicting with it. That alone isn’t enough to get the representative removed.

According to the language of Florida Statute 733.504(9), these interests must also have the potential to “… interfere with the administration of the estate as a whole.” The burden of proof therefore requires not only a showing of the interest at issue, but evidence of how this interest might clash with the job of administering the decedent’s estate.

Furthermore, if that potential interference is because the surviving spouse is the personal representative, then this basis for removal will not apply. Children, step-children, siblings, etc., cannot get a widow or widower removed as a personal representative here just because they have the right to a family allowance or elective share, etc., as part of their rights as a surviving spouse.

You must show two things to remove a personal representative here:

1. Evidence of the Adverse Interest

Proving the interest by admissible evidence placed in the record is extremely important in a removal action. Consider the case of Werner v. Estate of McCloskey, where a mother named her son to act as personal representative of her estate in her Last Will and Testament. When she died the probate judge did not follow her wishes, but instead placed her daughter in the job because the judge found that the son “… ha[d] a conflict of interest with the estate.”

The son appealed and the appellate court agreed with him. There was no evidence in the record of an adverse interest sufficient to keep him from taking on the job in accordance with his mother’s wishes. Upon review, the court found “… no competent substantial evidence” of any adverse interest in the record. Therefore, the son would serve in the role of personal representative because that jived with his dead mother’s wishes.

2. Evidence That the Adverse Interest Clashes With Estate Administration

Once an adverse interest is shown, the parties seeking removal of the personal representative must also show with admissible evidence that this interest will cause problems with the job of administering the estate. An example of where this was proven is the Florida case of Rand v. Giller, 489 So.2d 796, 798 (Fla. 3d DCA 1986).

Here, an outside attorney named Brian Giller helped the deceased, Mrs. Rosen, draft her Last Will and Testament. He was named in her will as co-personal representative with Joe McGowan, a family member and relative of the deceased. Both Giller and McGowan were lawyers. Giller’s law firm was also named as trustee of a trust established for the decedent’s sister.

When Mrs. Rosen died, her relative Joe McGowan started the probate proceedings. McGowan’s co-executor, Brian Giller sent a letter to him, asking that Giller’s law firm be hired as counsel for the estate. McGowan said no: he was willing to work at cost; furthermore, he and the other beneficiaries were in agreement that McGowan handle all the work required in representing the estate.

Giller countered by refusing to co-sign checks for estate expenses, something required as a co-personal representative. Letters started going back and forth between the two men with the dispute ending up in a Florida court of appeals.

There, the appellate court held that it was proper under Florida Statute 733.504(9) to remove Brian Giller as personal representative because in doing things like refusing to co-sign checks to pay estate expenses, which were not in dispute as being valid, he was interfering with the administration of the estate because of his conflict.

(Note that it didn’t matter that all the beneficiaries the personal representative out — it was only the evidence of Giller’s own actions and how they clashed with the efficient administration of Mrs. Rosen’s estate that got him removed under the statute).


For more information check out our probate litigation page.

Removing a Florida Personal Representative Because They Are Incapacitated

Posted By on June 10, 2015

As we recently discussed, under Florida law, there are a dozen reasons for removing a personal representative (See Florida Statute 733.504). Included among this statutory list of causes for removal, is removing the personal representative because they have been “adjudicated to be incapacitated.”

What does adjudicated mean and how do you know if a personal representative is incapacitated? The answers to these questions are especially important if you, as an interested person to an estate, believe that the personal representative’s behavior is harming the estate.


Is the Named Personal Representative Protected?

Under current law, Judges seek to protect the decedent’s choice of personal representative. According to Florida case law, probate courts are guided by the notion that “[t]he removal of a personal representative chosen by the deceased is a drastic action and should only be resorted to when the administration of the estate is endangered.” In re Murphy’s Estate, 336 So.2d 697, 699 (Fla. 4th DCA 1976).

Notwithstanding this standard, the probate court judge does have the discretionary power to remove a personal representative.  The appellate court (should that judge’s decision be appealed) will respect the judge’s determination and only alter the judge’s ruling if there is a clear showing that the judge abused his or her discretion in making the decision to remove the personal representative.

Which means, judges can remove a personal representative but will only do so when they have strong evidence of the need to do so.

What Is Incapacitated?

An individual is considered incapacitated under Florida law if they “…lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person.” Florida Statute 744.102(12).

It is not easy to prove someone is legally incapacitated in Florida. Strict procedures must be followed as outlined in Florida Statute 744.331, which includes the appointment, by a judge, of an examining committee who are directed to follow stringent reporting requirements.  The examining committee is directed to conduct a comprehensive examination of the alleged incapacitated person and prepare a report for the judge to review (the report must include several pieces of statutorily required information).  The examination must include, if indicated:

1. A physical examination;
2. A mental health examination; and
3. A functional assessment.

If any of these three aspects of the examination is not indicated or cannot be accomplished for any reason, the written report submitted to the judge must explain the reasons for its omission.

What is Adjudication?

Even if all the heirs, beneficiaries, and creditors gathered together in a probate courtroom and pointed their fingers at the personal representative, and in one voice cried out to the probate court judge that the representative was incapacitated and should not serve, that would make no difference under Florida law. The personal representative can not be removed by unanimous vote.

Instead, incapacity must be determined in a judicial proceeding. A petition must be filed with the clerk and the personal representative must have the opportunity to defend him or herself in the proceeding. Florida Statute 744.3201 provides the steps that must be taken here, which include filing a petition before the court that contains very specific information that is sworn to be accurate:

The petition must be verified and must:
(a) State the name, age, and present address of the petitioner and his or her relationship to the alleged incapacitated person;
(b) State the name, age, county of residence, and present address of the alleged incapacitated person;
(c) Specify the primary language spoken by the alleged incapacitated person, if known;
(d) Allege that the petitioner believes the alleged incapacitated person to be incapacitated and specify the factual information on which such belief is based and the names and addresses of all persons known to the petitioner who have knowledge of such facts through personal observations;
(e) State the name and address of the alleged incapacitated person’s attending or family physician, if known;
(f) State which rights enumerated in s. 744.3215 the alleged incapacitated person is incapable of exercising, to the best of petitioner’s knowledge. If the petitioner has insufficient experience to make such judgments, the petition must so state; and
(g) State the names, relationships, and addresses of the next of kin of the alleged incapacitated person, so far as are known, specifying the dates of birth of any who are minors.
(3) A copy of any petition for appointment of guardian or emergency temporary guardian, if applicable, shall be filed with the petition to determine incapacity.

In other words, “adjudication” means full due process for the person who is alleged to be incapacitated and a complete judicial consideration of that allegation, with witnesses and testimony and argument, before a judicial decision is made. Borden v. Guardianship of Borden-Moore, 818 So.2d 604 (Fla. 5th DCA 2002).

An adjudication also results in the entry of a written judgment that states that the individual is legally incapacitated. This final judgment is then entered into the court record.

What Happens Once an Adjudication of Incapacity Has Been Made?

If there has been an adjudication of incapacity for the person who was appointed as personal representative of the estate, then the written final judgment entered in the adjudication proceeding is filed with the probate court creating an adversarial proceeding in the probate case.

At that point, the probate judge will conduct a hearing to remove the individual from his or her position and appoint a new, duly qualified personal representative, which is in the best interest of the estate.

To Learn About Other Adversarial Probate Proceedings, Please See Our Probate Litigation Page


12 Causes For Removal of a Florida Personal Representative

Posted By on June 3, 2015

In other states, the person(s) representing the probate estate is sometimes called an “executor” (“executrix,” for females) or “administrator” (“administratix”).  However, here in Florida, the person who represents the estate of a decedent and has the job of overseeing the transfer and transition of their property to heirs and beneficiaries, as well as paying creditors and taxes, is called the estate’s “personal representative” (and that goes for both males and females!). See, Florida Statute § 733.301.

Who Are The Powers of a Florida Personal Representative?

The role of personal representative is an official, legal title that conveys a significant amount of power upon the individual, bank or trust company appointed.  But, as we all know, with great power comes great responsibility.  A Florida personal representative can do important things like sign checks, make deposits, even sell land or jewelry or other items that belonged to the person who has passed away. However, a Florida personal representative must also perform certain rudimentary tasks like publishing notice to creditors and paying the decedent’s debts before distributing any property to the beneficiaries.

The personal representative proves their authority to do any of these things (and more) on behalf of the estate by presenting their Letters of Administration.  The “letters,” as it is sometimes called, is a formal document that has been approved by the local probate court and signed by the judge certifying that this individual, or bank or trust company, has the legal authority to act on behalf of the estate. Florida Statute 733.301.  Usually, any banks or parties to a real estate transaction will require a specially-stamped “certified copy” of the letters (the certified letters are usually only accepted if they are used within 60 days of the date of certification) before proceeding in dealing with the personal representative on any official estate business.

It is a powerful role to undertake, and one that should not be taken lightly, as we are about to find out.



What if the Personal Representative Isn’t Doing Their Job?

Usually, estates in Florida are probated according to strict procedures prescribed by the Florida Probate Code, the Florida Probate Rules, as well as each court’s local rules and procedures.  While the court system may take longer than beneficiaries and creditors would like, most estates proceed smoothly, and are generally closed within 12 months of being opened (unless litigation or tax related issues force it to remain open longer).

The personal representative carries out their duties, ensuring that all legitimate creditors are satisfied and property is distributed according to the decedent’s wishes or Florida law.  Once that is complete, the personal representative asks the court to officially rule that their job is done and discharge them from the fiduciary position.  Once that is confirmed by the probate court, then they are released from further duties.

When someone does not do their job as a personal representative properly, things may not go as smoothly. Personal representatives can fail to do their work in all sorts of ways. However, if they are incompetent and making mistakes; if they are neglectful and things are not getting done; or if they are “self-dealing” and misusing the estate’s assets, they can be removed officially from the job and their representative’s letters revoked.

Causes for Removing a Personal Representative in Florida

There are 12 reasons listed in the Florida Probate Code for removing a personal representative from their job. Florida Statute 733.504.

Beneficiaries may move the court for removal as can creditors or other interested parties; as movants they must provide the probate judge with sufficient evidence of one of the following circumstances as stated in Florida Statute 733.504:

(1) Adjudication that the personal representative is incapacitated.
(2) Physical or mental incapacity rendering the personal representative incapable of the discharge of his or her duties.
(3) Failure to comply with any order of the court, unless the order has been superseded on appeal.
(4) Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required.
(5) Wasting or maladministration of the estate.
(6) Failure to give bond or security for any purpose.
(7) Conviction of a felony.
(8) Insolvency of, or the appointment of a receiver or liquidator for, any corporate personal representative.
(9) Holding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole. This cause of removal shall not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in this code.
(10) Revocation of the probate of the decedent’s will that authorized or designated the appointment of the personal representative.
(11) Removal of domicile from Florida, if domicile was a requirement of initial appointment.
(12) The personal representative would not now be entitled to appointment.

How Do You Remove a Personal Representative of a Florida Estate?

If you or a loved one believe that a personal representative is failing in their role, then first you must determine that you have “standing” to challenge the individual. Only “interested persons” to the estate can do this; if you have no connection to the estate (heir, beneficiary, creditor, etc.), then you do not have standing to seek removal.

An “interested person” is “… any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” Florida Statute § 731.201(23). If you’re not expecting to be affected by the outcome of the estate being probated, then you can’t challenge the personal representative no matter how suspicious you are about what he or she is doing.

If you have standing, and meet the definition of “interested person,” then you file a lawsuit with a document called a “Petition for Removal” in the probate court where the estate’s administration is being overseen. See Florida Statute 733.505.

This begins an official lawsuit under the umbrella of the estate proceedings called an “adversary proceeding,” before the probate court (typically, adversary proceedings are handled by the same probate court judge overseeing the estate administration). You must serve your petition on the personal representative, just like any other lawsuit, and the process of discovering facts (“discovery”) moves forward just as it does in any other lawsuit of a civil nature.  The Florida Rules of Civil Procedure apply, as closely as possible.  Documents are exchanged; depositions are taken.

Settlement negotiations can proceed, too: maybe the personal representative will agree to step down and an agreed order can be presented to the judge for consideration. It’s also possible that the removal lawsuit may end up in a full trial before a jury, especially if intentional wrongdoing has been alleged against the personal representative and large amounts of damages (sometimes including punitive damages) are in controversy.

Obviously, removal of a Florida personal representative is a complex legal undertaking. If you have reason to believe that the removal of a Florida personal representative of an estate in which you or a loved one are an interested party is warranted, then it may be wise to confer with an experienced probate lawyer to determine your options and how best to proceed.

For more information on Florida personal representatives, check out our posts that include:


Can Personal Representatives of Florida Estates Be Held Liable For The Damages They Cause?

Posted By on May 27, 2015

Florida probate law protects both the personal property and real estate holdings of anyone who passes away in the State of Florida by immediately creating a legal “estate.” The estate acts as legal owner of all that property immediately upon the individual’s passing, and until another legal action (such as a probate judge’s ruling or a will’s disposition) transfers ownership to an heir or beneficiary.

Since the estate isn’t a real person, Florida law requires that someone represent the estate and they are known as the estate’s “personal representative.” A person who agrees to take on the role of personal representative of an estate, also known as an executor (executrix) or administrator (administratrix), will have their actions and conduct monitored by the courts.

Personal representatives of Florida estates are held to the highest standards of conduct as a fiduciary to the estate’s heirs and beneficiaries. If they fail to do their duty, then they can be found guilty of breaching that fiduciary duty and held responsible for the damages that have resulted from that breach.


Liability for a Florida Personal Representative

Usually, a Florida personal representative is a trusted and beloved relative of the person who has passed away; parents, for example, often name one of their children as their estate’s personal representative. Sometimes, uncles or aunts are chosen to take on the job. It’s a decision made by the decedent prior to their death, where their choice is reflected in their Last Will and Testament. Often, they will name their first choice and also provide for a second or third alternative, if that first choice is unable or unwilling to become the estate’s representative.

In complicated estates, it is not uncommon for banks or trust companies to be named as personal representative; this is particularly true of estates with great wealth or where property is held across state lines or in foreign countries.

The Florida Probate Code requires that, in most situations, a lawyer be hired by the personal representative to help them administer the estate, with the lawyer being paid from estate funds for advice given to the estate’s personal representative. Florida Statute 733.6171.  Lots of personal representatives hire lawyers to help them.

However, it’s not required. There are times when personal representatives go it alone. These are situations where mistakes get made, and the personal representative may be guilty of negligence regarding disposition of the estate. Occasionally, there will also be times when the personal representative intentionally does bad things – like taking assets from the estate.

When a Florida personal representative fails in some way, they can be liable for their actions to the estate’s beneficiaries.

Holding a Florida Personal Representative Liable

When a personal representative has failed in their duties, an action must be undertaken in the probate court to challenge them and right the wrongs. These claims may be asserted at various times during the pendency of the estate and by more than one person.

Who Asserts the Claim Against the Personal Representative

A personal representative is liable under Florida law to interested persons for damage or loss resulting from bad faith, self-dealing, conflicts of interest, and breach of fiduciary duty. See, Florida Statute 733.609(l); Kaplan v. Kaplan. This means that there are a number of parties that may file claims against the personal representative of an estate.

1. Beneficiaries

There are times, for example, when one or more of the estate’s beneficiaries may file a request with the probate judge to have the representative ousted or removed. These cases will seek to remove the individual from the job as well as asking for damages for any harm done to the estate.

That’s if the beneficiaries are aware of things. It may be a successor or replacement representative who discovers the problem.

2. Successor Personal Representative

There is no rule that one person must remain as the sole personal representative of an estate, and particularly in long probates, there may be a succession in who is doing the job. In these cases, if something amiss is discovered, it is that new personal representative’s legal duty to file a claim in probate court against his or her predecessor on behalf of the estate itself.

Failure for the successor personal representative to file the claim regarding the questionable acts of their predecessor would be a breach of their fiduciary duty to the estate.

3. Creditors and Other Interested Parties

Finally, creditors or others interested in the assets of the estate may file a challenge to the actions of the personal representative.

Lawsuits Against the Personal Representative

Claims for damages can be based upon alleged negligence by the personal representative, where the harm has resulted from mistakes or incompetence on their part, or upon intentional bad acts done for personal gain. This is usually referred to as “self-dealing.”

Examples of “self-dealing” include letting the representative’s teenager drive the decedent’s car or letting a friend live or vacation in the decedent’s beachfront condo. Mistakes by a personal representative can be things like paying a creditor off whose debt was legally extinguished with the death of the debtor.

Moreover, both the personal representative and the attorney or law firm advising them can be sued for damages involving wrongdoing against the estate. See Bookman v. Davidson.

Personal representatives (and their legal counsel) may be held liable for “ … taxable costs as in chancery actions, including attorney’s fees.” Florida Statute 733.609(l).

If found liable, claims may be paid out of the personal representative’s share of the estate (if they are also a beneficiary) or out of their own assets.

However, these cases are not easy to prove nor are they easy to win.

Defenses of the Personal Representative

Florida probate judges will look hard at claims made against a personal representative by beneficiaries. Probate matters often involve high emotions among family members and disputes between siblings or children of the decedent will be assumed to have an emotional component. Claims against personal representatives must be filled with authenticated, admissible evidence that support the claims of wrongdoing.

Moreover, the decedent may have a say here. In many Florida wills, provisions include language that specifically states that any challenges made after a certain point in time are too late, and the bad acts will be forgiven under the terms of the will itself.