Florida Probate, Trust & Estate Blog : Florida Probate Lawyers & Attorneys : Clark Skatoff Law Firm : FL Wills, Trusts & Inheritance : Palm Beach, Broward County, Boca Raton

Establishing paternity in probate proceedings is a common issue, especially with the widespread availability of inexpensive and highly reliable DNA testing.  The rules for establishing paternity in Florida probate proceedings, however, have a number of hurdles, some of which intentionally deny biological paternity from controlling the outcome.

A.  Florida Probate Paternity Statute

The starting point for paternity determinations in probate is found at section 732.108, Florida Statutes (2009), which provides that paternity for children born out of wedlock can be established as follows: 

(a)  The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void. 

(b)  The paternity of the father is established by an adjudication before or after the death of the father. 

(c)  The paternity of the father is acknowledged in writing by the father.

If there is an adjudication of paternity, prior to the death of the father, it will likely have taken place in the family courts, whereas an adjudication of paternity after the death will most likely end up in the probate courts. Section 732.108 permits the probate courts to adjudicate paternity rights which have not already been adjudicated in another proceeding.

Section 732.108 does not permit the probate court to address paternity issues after a prior paternity determination in family court or elsewhere.  Instead, a litigant is required to go back to the court making the original paternity determination. In Glover v. Miller, 947 So.2d 1254, (Fla. 4th DCA 2007), a probate court addressed this very issue with regard to a party’s right to contest a prior paternity adjudication.

Because any determination of paternity will involve many other parties and have effects more far reaching than a mere adjudication of the biological connection between Jerrod and Glover, we are not convinced that such a determination can and should be made as part of the probate proceedings where the only issue to be determined is intestate succession. We agree with the trial court that in order for Glover to assert a right as an heir, the existing judgment of paternity would have to be vacated. A child cannot have two legally recognized fathers.

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In probate proceedings, it is not unusual for the original of the will to be missing, and only a copy of the will can be located.  Florida law allows the copy of the will to be probated, but any person adversly affected by the copy can challenge the admission of the copy of the will to probate. 

It is well-settled under Florida law that evidence that a testator's will was in his possession prior to death and cannot be located subsequent to death gives rise to a rebuttable presumption that the testator destroyed the will with the intention of revoking it. In re Estate of Carlton, 276 So.2d 832, 833 (Fla.1973).

To order to rebut the presumption that the will was destroyed, Florida courts have permitted a variety of evidence:

In several cases, Florida courts have found the presumption of intentional revocation to be rebutted by a showing of: 1) evidence that a person with an adverse interest, and the opportunity, may have destroyed the will, see In re Estate of Washington, 56 So.2d at 547; Lonergan v. Estate of Budahazi, 669 So.2d 1062 (Fla. 5th DCA 1996); Upson v. Estate of Carville, 369 So.2d 113 (Fla. 1st DCA 1979); 2) evidence that the will was accidentally destroyed, see In re Estate of Carlton, 276 So.2d at 833 (presumption was rebutted where decedent repeatedly spoke of his will and his intention to leave his estate to the petitioner, although the decedent's safe was found waterlogged and the papers inside turned to “mush”); 3) evidence that the original will had been seen among the decedent's papers after her death, see Silvers v. Estate of Silvers, 274 So.2d 20 (Fla. 3d DCA 1973); and 4) evidence that the decedent was insane and thus did not have testamentary capacity to effectively revoke the will, see In re Estate of Niernsee, 147 Fla. 388, 2 So.2d 737 (1941).
 

Balboni v. LaRocque, 991 So.2d 993 (Fla. 4th DCA  2008).  The use of presumptions and the ability to rebut them is an integral part of Florida probate procedure (see, for example, the presumption of undue influence).
 

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In MacIntyre v. Wedell, 12 So.3d 273 (4th DCA 2009), the Court dismissed a challenge to the settlor's removal of funds from her revocable trust on the grounds of undue influence.  Twenty five years ago, the Florida Supreme Court, in Genova v. Florida National Bank of Palm Beach County, 460 So.2d 895 (Fla. 1984), barred an undue influence challenge to a settlor's removal of funds from her revocable trust.  The litigation in that case occured while the settlor was still alive.  In MacIntyre, the settlor had died before the litigation commenced.  The MacIntyre Court relied on the reasoning from Genova in dismissing the trust complaint.

The courts have no place in trying to save persons such
as Mrs. Genova, the otherwise competent settlor of a
revocable trust, from what may or may not b e her own
imprudence with her own assets. When she created this
trust, she provided a means to save herself from her own
incompetence, and th e courts can and should zealously
protect her from her own mental incapacity. However, when
she created this trust, she also reserved the absolute right to
revoke if she were not incompetent. In order for this to
remain a desirable feature of a trust instrument, the right to
revoke should also be absolute.

This opinion has received adverse commentary from several sources, including here.  As the prevailing attorney in the case, I believe the decision is defensible, due to the unique nature of revocable trusts.  A challenge to a competent settlor withdrawing money out of a revocable trust should fail in the same way that a competent person withdrawing money out of his or her bank account should fail.  The reported case does not address what happened to the funds after they were withdrawn.  Had the plaintiff attacked the destination of the funds, rather than the removal of the funds from the revocable trust, the case may have withstood dismissal.

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A will can be challenged in a Florida probate proceeding on a number of grounds.

• Lack of Proper Formalities. Proper execution of a will requires that the will be signed by the testator and witnessed by two witnesses, who also sign the will. A will can be contested on the grounds that it was not properly drafted, signed, or witnessed in accordance with the applicable requirements.
• Lack of Capacity. Under Florida law, a testator is required to have mental competency to make a will and to understand the nature of his or her assets and the people to whom the assets are going to be distributed. A will can be declared void if lack of capacity can be proven. Typically, incompetence is established through a prior medical diagnosis of dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the deceased around the time the will was executed.  Miami Rescue Mission vs. Roberts is a recent case that describes the current state of the law for proving lack of capacity and insane delusion. 
• Undue Influence. Undue influence occurs when the testator is compelled or coerced to execute a will as a result of improper pressure exerted on him or her, typically by a relative, friend, trusted advisor, or health care worker. In many cases, the undue influencer will upset a long established estate plan where the bulk of the estate was to pass to the direct descendants or other close relatives of the decedent. Some undue influencers are new friends or acquaintances of the decedent who “befriend” the decedent in the last months or years of life, typically after the decedent has suffered some decline in mental ability. In other situations, one child of the decedent, often a caregiver, will coerce the decedent to write the other children out of the will. Undue influencers can also be health care workers or live in aides who implicitly or explicitly threaten to withhold care unless the estate plan is changed in favor of the health care worker. The Estate of Carpenter is the seminal undue influence case for Florida will contest litigation.

The time for making a will contest in Florida is short, typically 90 days after the Notice of Administration has been provided by the Personal Representative, or 20 days in the event that Formal Notice of the probate proceeding is received before the will has been admitted to probate. Therefore, prompt action is required to bring your lost inheritance back to life.

Not just a will can be challenged under these grounds. A trust can be challenged under the same grounds, as well as a real estate deed or a beneficiary designation on a financial account. There are many situations where the undue influencer will trick or persuade a weakened person to sign over valuable real estate, a bank account, or other property directly to the influencer, in the hope that they will have left the scene before the wrongdoing can be discovered. Sometimes, the undue influencer will be added as a beneficiary on bank accounts in place of the heirs to whom the decedent intended the account to pass.

If the wrongdoing is discovered prior to the victim's passing, a common way for a loved one to start to clean up the situation will be to create a guardianship, which will allow the guardian to use the court's jurisdiction to reclaim assets that were fraudulently removed. If an estate plan was also changed because of undue influence, the guardianship will also allow evidence to be collected for use at a subsequent will contest proceeding.
 

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Creditor claims in probate are subject to two statutes of limitation within which a creditor claim must be filed with the probate court.  

The first creditor claim limitation period is the 30 day / three month rule, which requires that a claim be filed within the later of (i) 3 months after the first publication of the notice to creditors (which is filed in the local business newspaper or the paper of general circulation), or (ii) 30 days after the creditor is served with a copy of the notice to creditors.  

For creditors not directly receiving a copy of the notice to creditors, the 3 month rule is subject to a number of extensions that the probate court may grant, the primary one being that the creditor did not have sufficient notice of the claims period.  ("Reasonably ascertainable" creditors are supposed to be served with a copy of the notice to creditors.  Those that are not served and who were unaware of the running of the claims period will routinely petition the probate court for an extension.)

The second creditor claim period of limitation is the two year rule, which requires creditor claims to be brought within two years of death of the deceased.  This limitation period is not subject to extensions or exceptions. 

In Mack v. Perri (1st DCA 2009), the Court addressed these claim limitation periods as follows.  The Deceased died November 18, 2004.  The first notice to creditors was published May 14, 2005.  The creditor filed its claim on October 31, 2005.  

The Court held that the claim was barred by the three month rule, because the claim was not filed within three months of the publication of the notice to creditors.  The Court also held that the claim was barred by the two year rule, because, although the three month limitation has provisions for extensions, the claim and motion for an extension must be filed before the expiration of the two year limitation period.  

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When large taxable estates are involved in litigation, estate tax issues can be tricky. This problem is most pronounced where one outcome of the litigation would result in less estate tax being paid. For example, if an adult child is the beneficiary of the last will, but a charity is the beneficiary of a prior will, and the child and the charity are litigating over which is the valid will, how much estate tax will ultimately be owed is unknown.  

If the charity prevails, because bequests to a charity are free of estate tax, the estate owes nothing. If the child prevails, the estate might owe estate tax on the bequest.  Estate taxes are due and payable nine months from the date of death, or interest and possibly penalties could apply. Most complex estate litigation would still be pending nine months after death.

If the maximum amount of estate tax is paid to the Internal Revenue Service, the estate may have some difficulty getting the money back if the charity prevails. If the estate pays less than what it would owe if the child prevails, interest and penalties may apply.  

In order to stop the possible imposition of interest and penalties, yet still allow for an easy return of funds should the estate not owe the tax, the Internal Revenue Code, Section 6603, allows a taxpayer to submit a deposit. The estate tax return would be filed as if the charity were to prevail, showing no tax owing, with adequate disclosure of the litigation.  Simultaneously, the estate would place on deposit with the IRS an amount that would equal the tax were the child to prevail.  

Under Revenue Procedure 2005-18, a deposit is automatically returned upon request, normally with interest.  A payment is not returned so easily, and the IRS could refuse to make the payment refund or could delay the return of the payment for an extended period of time, complicating the closure of the estate. 

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Probate and trust litigators in Florida deal with allegations of undue influence in the creation of a will or trust more than any other issue.  Florida law makes use of a series of presumptions in controlling the outcome of undue influence cases.  

In Estate of Madrigal v. Madrigal (3rd DCA 2009), the appellate court affirmed the trial court's revocation of a will as a result of undue influence, basing its holding on the presumptions that apply in undue influence cases:  

[W]here the proponent of a will satisfies, prima facie, the will is facially proper, and the contestant thereafter satisfies, prima facie, a presumption of undue influence in the making of the will, the proponent of the will has the burden of proving the will was not the product of undue influence. That burden must be met by a preponderance of the evidence as determined by the trier of fact.

The presumption of undue influence arises under Florida law where "a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will."  In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971).  

Once the trial court determines that a beneficiary was active in the procurement of a will and had a close, trusting relationship with the testator, that beneficiary bears the burden of proof to show that the will was not the product of undue influence.  

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