Florida Probate & Trust Litigation Blog : Florida Probate Litigation, Will Contest Lawyer & Attorney : Juan C. Antúnez : Serving Miami, Jacksonville, Tampa Saint Petersburg, Orlando, Fort Lauderdale

This is my running list of significant Florida trusts-and-estates appellate opinions for 2011. The criteria for inclusion is somewhat subjective, so I'm certainly not guaranteeing that I've identified every case that could conceivably be related to contested probate or trust matters in Florida. However, if you think I've missed an important appellate decision that deserves wider notice please let me know. As new appellate decisions are published they'll be added to the list.

All of the appellate opinions listed below are hyper-linked to a copy of the opinion and my blog post commenting on the case.

1. Marger v. De Rosa, --- So.3d ----, 2011 WL 252942 (Fla. 2d DCA January 28, 2011) (Homestead Rights vs. Joint Tenancy Rights)
2. Relinger v. Fox, --- So.3d ----, 2011 WL 439428 (Fla. 2d DCA Feb 09, 2011) (Abating trust actions)
3. Habeeb v. Linder, --- So.3d ----, 2011 WL 613392 (Fla. 3d DCA Feb 09, 2011) (Does deed signed by both spouse = homestead waiver)
4. Henderson v. Elias, --- So.3d ----, 2011 WL 710190 (Fla. 4th DCA Mar 02, 2011) (Florida probate court’s lack of jurisdiction over non-residents)
5. Figel v. Wells Fargo Bank, N.A., 2011 WL 860470 (S.D.Fla. Mar 09, 2011) (Trustee’s investment duties)
6. Reid v. In re Estate of Sonder, --- So.3d ----, 2011 WL 1007137 (Fla. 3d DCA Mar 23, 2011) (Trust Reformation)
7. Lauritsen v. Wallace, --- So.3d ----, 2011 WL 1195873 (Fla. 5th DCA Apr 01, 2011) (Can decedent’s will forgive debts of his insolvent estate)
8. Levin v. Levin, --- So.3d ----, 2011 WL 1772245 (Fla. 4th DCA 2011 May 11, 2011) (Insane delusion)
9. TTSI Irrevocable Trust v. Reliastar Life Ins. Co., --- So.3d ----, 2011 WL 1810601(Fla. 5th DCA May 13, 2011) (Insurable Interests)
10. Shapiro v. Tulin, --- So.3d ----, 2011 WL 1878014 (Fla. 4th DCA May 18, 2011) (Agreement to make a will)
11. Drucker v. Duvall, --- So.3d ----, 2011 WL 1878144 (Fla. 4th DCA May 18, 2011) (Venue; Fee Agreement Disputes)
12. BankAtlantic v. Estate of Glatzer, --- So.3d ----, 2011 WL 1877839 (Fla. 3d DCA May 18, 2011) (Corporate funds vs. estate funds)
13. Melican v. Parker, 289 Ga. 420 (May 31, 2011) (Ademption)
14. Lituchy v. Estate of Lituchy, --- So.3d ----, 2011 WL 2135597 (Fla. 4th DCA Jun 01, 2011) (Can PR go pro se?)
15. Crawford v. Barker, --- So.3d ----, 2011 WL 2224808 (Fla. Jun 09, 2011) (Marital settlement agreement vs. beneficiary designation forms)
16. U.S. v. Jicarilla Apache Nation, --- S.Ct. ----, 2011 WL 2297786 (U.S. Jun 13, 2011) ("fiduciary exception" to the attorney-client privilege)
17. Hirchert Family Trust v. Hirchert, --- So.3d ----, 2011 WL 2415787 (Fla. 5 Dist. Jun 17, 2011) (Equitable exception to Florida's homestead creditor protection)
18. Bright v. Baltzell, --- So.3d ----, 2011 WL 2462760 (Fla. 4th DCA Jun 22, 2011) (Voluntary Dismissal: Costs v Fees)
19. LoCascio v. Estate of LoCascio, --- So.3d ----, 2011 WL 2555644 (Fla. 3d DCA June 29, 2011) (PR removal; due process rights)
20. Hancock v. Share, --- So.3d ----, 2011 WL 2650887 (Fla. 5th DCA July 8, 2011) (Guardian’s authority to approve structured settlement binding ward after age 18)
21. Thorpe v. Myers, --- So.3d ----, 2011 WL 2731937 (Fla. 2d DCA Jul 15, 2011) (Guardian’s statutory entitlement to compensation + payment of attorneys fees/costs)
22. Faulkner v. Faulkner, --- So.3d ----, 2011 WL 2937302 (Fla. 1st DCA Jul 22, 2011) (Assessing examining committee fees in emergency temporary guardianships)
23. Levin v. Levin, --- So.3d ----, 2011 WL 3477032(Fla. 4th DCA Aug 10, 2011) (Assessing attorney's fees against beneficiary’s share of estate)
24. Long v. Willis, --- So.3d ----, 2011 WL 3587411 (Fla. 2d DCA Aug 17, 2011) (Rights of minors when appointing PR’s)
25. Basile v. Aldrich, --- So.3d ----, 2011 WL 3696309 (Fla. 1st DCA August 23, 2011) (Does will without residuary clause = partial intestacy?)
26. Hill v. Davis, --- So.3d ----, 2011 WL 3847252 (Fla. Sep 01, 2011) (Limitations period; objecting to Personal Representative’s appointment)
27. Ortmann v. Bell, --- So.3d ----, 2011 WL 4104908 (Fla. 2d DCA Sep 16, 2011) (Sufficient evidence: Breach of Trust)
28. In re Amendments to Florida Probate Rules, --- So.3d ----, 2011 WL 4467595(Fla. Sep 28, 2011) (Changes conforming to new legislation)
29. Guy Bennett Rubin, P.A. v. Guettler, --- So.3d ----, 2011 WL 4577670 (Fla. 4th DCA Oct 05, 2011) (Contingency fee agreement in probate litigation)
30. Steffens v. Evans, --- So.3d ----, 2011 WL 4577938 (Fla. 4th DCA Oct 05, 2011) (Waiver of marital inheritance rights)
31. Siegel v. JP Morgan Chase Bank, --- So.3d ----, 2011 WL 4949794 (Fla. 4th DCA Oct 19, 2011) (Revocable trust's remainder beneficiary’s standing to sue)
32. Lehman v. Lucom, --- So.3d ----, 2011 WL 5061182 (Fla. 4th DCA Oct 26, 2011) (PR’s breach of fiduciary duty)
33. In re Amendments to Florida Rules of Appellate Procedure, No. SC11-192 (Fla. Nov. 3, 2011) (New/expanded appellate rule 9.170 for probate & guardianship proceedings)
34. Davis v. Estate of James Davis, --- So.3d ----, 2011 WL 5375110 (Fla. 3d DCA Nov 09, 2011) (Attorney’s fee claims)
35. Darian v. Weymouth, --- So.3d ----, 2011 WL 5554786 (Fla. 4th DCA Nov 16, 2011) (Lapse of interest in revocable trust)
36. Agee v. Brown, --- So.3d ----, 2011 WL 5554833 (Fla. 4th DCA Nov 16, 2011) (Ethics violation does not equal void will)
37. Layne v. Layne, --- So.3d ----, 2011 WL 5560563 (Fla. 1st DCA Nov 16, 2011) (Does quit claim deed trump intestacy rights)
38. Grisolia v. Pfeffer, --- So.3d ----, 2011 WL 5864806 (Fla. 3d DCA Nov 23, 2011) (Homestead creditor protection for non-citizens)
39. Corya v. Sanders, --- So.3d ----, 2011 WL 6057899 (Fla. 4th DCA Dec 07, 2011) (Trustee’s duty to provide annual accountings)
40. SPCA Wildlife Care Center v. Abraham, --- So.3d ----, 2011 WL 6183491 (Fla 4th DCA Dec 14, 2011) (cy pres doctrine)
41. Rosenkrantz v. Feit, --- So.3d ----, 2011 WL 6183525 (Fla. 3d DCA Dec 14, 2011) (Rights/duties of attorneys-in-fact)
42. Rothman-Browning v. Marshall, --- So.3d ----, 2011 WL 6373038 (Fla. 4th DCA December 21, 2011) (Right to hearing on objections to guardianship reports)

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The WSJ's Wealth Report Blog posted here on litigation swirling around the trust/estate of billionaire mall magnate Mel Simon. What I found especially interesting was the implication of possible undue influence by his surviving spouse, Bren Simon. Here's an excerpt:

Months before he died of cancer last September, billionaire mall magnate Mel Simon made some big changes to his will.

The changes boosted the share of his fortune left to his wife, Bren Simon. Originally she was to get a third. After the changes, she was to half.

The changes also cut out Melvin’s three children from his first marriage—Deborah, David Simon and Cynthia Simon-Skjodt—and left charitable giving to Bren’s discretion. The earlier will earmarked one-third of the estate for charity.

Mr. Simon’s estate is valued at somewhere from $1 billion to $2 billion, and it has increased since his death since the stock in the company he founded–Simon Property Group–has rebounded.

The changes to the will sparked an escalating Simon-family feud, as this Chicago Tribune article lays out.. Mr. Simon’s daughter Deborah is suing her stepmom, Bren Simon, alleging she persuaded Mel Simon to change his will to reduce the children’s inheritances. The suit claims her dad was suffering from dementia at the time and needed help signing the document.

Now, Bren Simon’s latest court filing [click here] says Mr. Simon “voluntarily and of his own free will signed a valid will and trust in February.” She acknowledges that Mr. Simon needed help with his signature, but said Parkinson’s symptoms in his right hand were to blame.

Spousal Undue Influence Claims in Florida:

I have no idea what the law is on spousal undue-influence claims in Indiana (where Mr. Simon's estate is being litigated), but in Florida they're very tough to prove. For starters, you can't rely on the "confidential relationship" between spouses to trigger the presumption of undue influence. There's a solid, common sense reason for this rule: in its absence every will benefiting a spouse could potentially be challenged on undue influence grounds. Here's how the 3d DCA explained Florida's approach in Tarsagian v. Watt, 402 So.2d 471 (Fla. 3d DCA 1981):

The holding of Goertner v. Gardiner, 125 Fla. 477, 170 So. 112, reh. den., 126 Fla. 412, 170 So. 844 (1936), that the confidential relationship which exists between a husband and wife is not one which may be considered in the law governing will contests, accord, In re Estate of Knight, 108 So.2d 629 (Fla. 1st DCA 1959), is, in our view, still extant. Since a confidential relationship is one necessary requirement which must be met before a presumption of undue influence arises, under Goertner the presumption cannot arise in the case of a husband and wife. Were the confidential relationship between spouses not exempted from that presumption of undue influence rule, the presumption would arise in nearly every case in which the spouse is a substantial beneficiary, since the required active procurement would almost always be present. One would naturally expect to find a spouse to be present at the execution of the will, present when the testator expresses a desire to make a will, knowledgeable about the contents of the will prior to its execution, involved in its safekeeping, and perhaps even involved in the recommendation of an attorney-preparer and consultation with an attorney-preparer. These, of course, are among the criteria for determining if one is engaged in active procurement. See In re Estate of Carpenter, supra.

On the other hand,  I don't think this means a spousal undue influence claim is impossible in Florida; you just can rely on the presumption. Instead, you'll need to prove your case directly. A case that suggests a finding of undue influence against a surviving spouse, although not based on a presumption, is In re Auerbacher's Estate, 41 So.2d 659 (Fla. 1949). 

But what if the marriage itself is procured by fraud, undue influence, or duress?

By the way, if someone is intent on preying upon another's wealth, the best way to go about doing it isn’t mucking around with estate planning documents, it’s marrying the guy. The mother of all inter-spousal estate grabs is the marriage itself. Once you’re hitched, you’re automatically entitled to all sorts of goodies as a surviving spouse, no matter what the estate planning documents may say.

This is where we hit a brick wall in Florida: the current state of the law seems to be that marriages procured by fraud, undue influence or duress can’t be challenged after a person’s death. Click here for an excellent white paper prepared by über probate litigator William (“Bill”) T. Hennessey and his team over at Gunster summarizing Florida law on this issue and a proposed legislative fix. Here’s an excerpt:

The mere status of surviving spouse affords a myriad of significant financial benefits under Florida law, including the right to homestead property (at least a life estate in the decedent's homestead residence), an' elective share (30% of the decedent's augmented elective estate), to take as a pretermitted spouse (up to 100% of the estate under the laws of intestacy), family allowance, exempt property, and priority in preference in selecting a personal representative. In addition, Florida courts have held that a presumption of undue influence in a will contest "cannot arise in the case of a husband and wife" because the requirement of active procurement would almost always be present. Jacobs v. Vaillancourt, 634 So. 2d 667, 672 (Fla. 2d DCA 1994); Tarsagian v. Wall, 402 So. 2d 471, 472 (Fla. 3d DCA 1981).

Most of these benefits are well deserved. It has often been said that Florida has a strong public policy in favor of protecting a decedent's surviving spouse. See, e.g., Via v. Putnam, 656 So. 2d 460, 462 (Fla. 1995). However, what happens when a marriage is procured by undue influence, fraud or exploitation? Is Florida's public policy furthered, in such an instance? This report will discuss the current state of Florida law on the ability to challenge the validity of a marriage after the death of one of the parties to the marriage. It will also examine how other states have addressed this issue.
. . . . .

In sum, Florida follows the common law and majority rule which only allows void marriages to be challenged after death. In most instances, Florida courts have held that marriages procured by fraud, duress, and undue influence are merely voidable, affording potential heirs no ability to challenge a marriage after death. Given the extensive rights available to a surviving spouse, a wrongdoer can profit significantly by simply inducing or influencing an elderly person to enter into a marriage. The Subcommittee recommends that the full committee consider and discuss legislation to address this issue.

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I recently worked with one of my partners on drafting the Florida Chapter of the newly released International Succession, published by Oxford University Press. The list of contributors is a "Who's Who" of prominent probate lawyers in the world today. Good place to start if you’re ever looking for expert local counsel in anyplace from Dubai to Brazil . . . and all points in between.

I'm proud of the final product and think it's the kind of resource more and more trusts and estates lawyers will need to turn to over the coming years as everyone's practice grows evermore multijurisdictional in nature. If your practice has an international flavor, this resource is a good investment. Here's how the publisher described it:

Increasing numbers of people have connections with one country, but live and work in another, frequently owning property or investments in several countries. As such, international aspects arise in an increasing number of estates. Different countries may have separate arrangements for ownership, taxation, and succession. International Succession equips practitioners with the information necessary to navigate problems involving these different systems.

Although lawyers would often advise only on the law of the jurisdictions in which they are based, seeking advice from lawyers in other countries, this book will save the practitioner the time - and expense - of ascertaining the basics concerning the inheritance systems in different countries, offering clear and easy to use information on the laws of inheritance and succession.

Each country's report is based on responses to a comprehensive questionnaire that considers the practical issues arising from the jurisdiction's individual laws, making it easy for users to make specific comparisons between the laws of one country and another. The book covers over fifty countries with entries written by experts from each country, making it an invaluable resource for the busy practitioner.

This title is an improved and expanded version of International Succession , edited by Louis Garb and published by Kluwer Law International, 2004. This edition, published in hardback form, will also be supplemented annually in between editions to update the individual country entries.

Features

• Provides a comprehensive survey of succession laws in over fifty countries

• Enables easy cross-referencing with a questionnaire format for each country

• Considers the practical issues arising out of inheritance across multiple jurisdictions

• Supplemented annually in between editions to keep existing country entries fully up-to-date and include a selection of new countries

• Entries written by experienced practitioners in the relevant jurisdiction around the world

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Estate of Madrigal v. Madrigal, --- So.3d ----, 2009 WL 4061747 (Fla. 3d DCA Nov 25, 2009)

I recently wrote here about the "Undue Influence Worksheet," a tool for probate litigators and their clients to organize their thinking and zero in on the key evidence determining the outcome of their undue influence case. Why is this so important? Because when it comes to pure fact questions, such as whether your client did or did not unduly influence the testator, expect you'll only get one shot at winning your case: at trial. As the linked-to case makes clear, it doesn't matter if a panel of appellate judges would have called your case a different way, as long as your trial judge's factual determinations are supported by competent substantial evidence, that's it, game over: the trial judge's order stands.

In the instant case, following an evidentiary hearing, the trial court entered an order making specific findings of facts and concluding that the sole beneficiary procured the testator's last will and testament by undue influence. As the trial court's findings of fact are supported by competent, substantial evidence, and the findings of fact support the trial court's conclusion of undue influence, we affirm the order under review. See Estate of Brock, 692 So.2d 907, 913 (Fla. 1st DCA 1996) (“[O]ur scope of review requires us to accept the factual findings of the trial court so long as there is support for them by competent substantial evidence. It is axiomatic that the trial court's resolution of conflicting evidence will not be disturbed by a reviewing court in the absence of a clear showing of error, or that the conclusions reached are erroneous.”).

What's going on here is pretty basic to how our court system is supposed to work: trial judges decide fact issues, appellate judges decide legal issues. If your case turns on a pure fact issue, don't expect a "do over" on appeal. This division of labor was at the heart of the Florida Supreme Court's thinking when it articulated the competent-substantial-evidence standard in Shaw v. Shaw, 334 So.2d 13, 16 (Fla. 1976):

It is clear that the function of the trial court is to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses appearing in the cause. It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal before it. The test ... is whether the judgment of the trial court is supported by competent evidence. Subject to the appellate court's right to reject "inherently incredible and improbable testimony or evidence," it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court.

OK, you ask, so what's competent substantial evidence?

Here's how the phrase was broken down and defined by the 5th DCA in the context of a probate case in Lonergan v. Estate of Budahazi, 669 So.2d 1062, 1064 (Fla. 5th DCA 1996):

The term "competent substantial evidence" does not relate to the quality, character, convincing power, probative value or weight of the evidence but refers to the existence of some evidence (quantity) as to each essential element and as to the legality and admissibility of that evidence. Competency of evidence refers to its admissibility under legal rules of evidence. "Substantial" requires that there be some (more than a mere iota or scintilla), real, material, pertinent, and relevant evidence (as distinguished from ethereal, metaphysical, speculative or merely theoretical evidence or hypothetical possibilities) having definite probative value (that is, "tending to prove") as to each essential element of the offense charged.

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Morgenthau v. Estate of Andzel, --- So.3d ----, 2009 WL 5151741 (Fla. 1st DCA Dec 31, 2009)

I recently wrote here about Florida's ultra-short deadlines for filing creditor claims against probate estates and how they can be unforgiving traps for the unwary. These deadlines are scary because they can fly by without a creditor ever being the wiser.

But, some of you may ask, what about an estate's duty under F.S. 733.2121 to give "reasonably ascertainable" creditors actual notice of the filing deadline? If I'm a reasonably ascertainable creditor and the estate didn't give me notice, do I get a free pass? NO says the 1st DCA in the linked-to case above.

In this case the holder of an unpaid promissory note filed a creditor claim against the debtor's probate estate over a year after the estate first published its notice to creditors in a local newspaper. Clearly the creditor had blown past the generally applicable 3-month claims-filing deadline under F.S. 733.702. The creditor argued he shouldn't be bound to this deadline because he was a reasonably ascertainable creditor and the estate hadn't complied with its duty under F.S. 733.2121 to give him actual notice of the filing deadline.

Sorry, says the 1st DCA. Unless a creditor asks for an extension to file his claim (and "insufficient notice of the claims period" is one of the grounds for getting an extension), he's out of luck. Here's why:

Here, appellant filed a statement of claim past the three month filing window. As such, according to section 733.702(1), the claim was untimely as appellant did not receive actual notice of the claim and was, thus, a creditor who fell in the three month filing window following publication. See also Miller v. Estate of Baer, 837 So.2d 448, 449 (Fla. 4th DCA 2002) (holding creditors who do not receive actual notice have until the close of the three month publication window to file a claim regardless of whether creditor asserts it was entitled to actual notice).

Further, appellant did not file a motion for extension of time to file the claim or otherwise seek an extension. All Florida cases since [May v. Illinois Nat. Ins. Co., 771 So.2d 1143 (Fla.2000)] dealing with the forgiveness of a timeliness issue as to a creditor's claim where the creditor asserts he or she was a reasonably ascertainable creditor subject to actual notice reach the issue through review of the creditor's request for an extension, not through creditor's filing of a statement of claim. Faerber v. D.G., 928 So.2d 517, 518 (Fla. 2d DCA 2006) (reversing a trial court's grant of creditor/appellee's motion for extension of time to file a claim where no evidence was considered prior to the grant); Simpson v. Estate of Simpson, 922 So.2d 1027 (Fla. 5th DCA 2006) (reviewing trial court's denial of appellant's motion for extension of time based on the allegation he was a readily ascertainable creditor who should have received actual notice of decedent's death); Longmire v. Estate of Ruffin, 909 So.2d 443 (Fla. 4th DCA 2005) (same); Strulowitz, 839 So.2d 876 (same); Miller, 837 So.2d at 448-50 (same).

While the Statement of Claim listed facts upon which a probate court could grant an extension, the Statement of Claim did not request an extension. Further, at no point in either the initial brief or the reply brief does appellant argue his Statement of Claim should be converted or modified to be read as a motion requesting an extension of time. The proper procedural course for untimely claims is the filing of an extension request prior to the filing of a statement of claim. § 733.702(1)-(3), Fla. Stat. (2007). Under the plain language of the statute, once appellant's claim fell outside the three month claim period, regardless of his arguments for delay, his claim could only be considered after the probate court's grant of an extension. Because appellant chose to file only a Statement of Claim and never requested an extension of time to file that claim, the probate court was bound by the relevant statutes to deny the claim. § 733.702(1)-(3), Fla. Stat. (2007).

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The Florida Bar Real Property Probate and Trust Law Section is now accepting applications for the 2010 Fellowship class. The RPPTL Section Fellowship program, created in 2007, awards up to 4 fellowships to exceptional Florida attorneys interested in our practice areas. The Fellowship program allows these individuals to be substantially involved in the Section work, receive leadership training and work closely with leading Florida attorneys in their field.

Click here, here for a memo explaining the fellowship program and an application form.

The deadline for applications is April 1, 2010, so please pass this information on to anyone you know who might be interested as soon as possible. If you have any questions, please contact Tae Bronner, co-chair of the RPPTL Fellowship committee, at tae@estatelaw.com or 813-907-6643. The Fellowship memo and application can also be found on the section website at www.rpptl.org.

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The law governing undue influence claims in Florida is a frequent topic of discussion on this blog [click here, here, here, here]. But for those of us in the trenches, we know clever legal arguments rarely carry the day; these cases are won and lost on the strength of your evidence.

So here's the problem: there aren't many tools out there designed to help probate litigators and their clients organize their thinking and zero in on the key facts they'll need to build a winning case. One such tool I recently discovered is the Undue Influence Worksheet developed by forensic psychiatrist Bennett Blum, M.D. In this short article Dr. Blum explains the thinking underlying his worksheet:

The “Worksheet” is based upon the IDEAL protocol, which combines knowledge from the fields of psychiatry, psychology, and sociology regarding the mechanisms of human manipulation, with extensive review of statutes, case law, and legal theory. IDEAL describes those psychological and social factors that commonly co-exist in undue influence situations. These factors are: Isolation; Dependency; Emotional manipulation and/or Exploitation of a vulnerability; Acquiescence; and Loss. 

Case Study:

When I'm teaching I find nothing beats a good case study for explaining new ideas. So I was happy to see Dr. Blum included the following case study in his article applying his Worksheet:

The following is a true case, although extreme in its clarity. The issue of undue influence is obvious, but the case is presented to help show how a fact pattern is considered within the IDEAL protocol:

Mr. Jones is an affluent, 88 year-old retired professor. His beloved wife of 60 years died two years ago, and since then he has been very lonely. Mr. Jones has a good and loving relationship with his three adult children, and though they live in other States he speaks with each every week. Mr. Jones moved to a retirement community four years earlier, and because of his wife’s illness and subsequent death, he has no significant social contacts in his current community. His long-time friends live several hundred miles away. Mr. Jones has multiple medical problems – diabetes, heart disease, high blood pressure, and difficulty walking due to arthritis – but has no apparent cognitive impairment.

Mr. Jones meets Ms. Smith, a 62 year-old divorced woman. She moves into his home six months later. She provides physical care in the form of preparing meals, cleaning the house, taking him to physician appointments, and ensuring he takes his medications properly. During the next six months, Ms. Smith begins asking for “tokens of appreciation” and purchases a new car, wardrobe, and jewelry with Mr. Jones’ money. She also demands that he give her his late wife’s jewelry, which he had intended to give to his grandchildren. At the same time, Mr. Jones stops telephoning his children, and they in turn find it more and more difficult to speak with him. Ms. Smith is now the only person to answer the telephone, and when the children call they often are told their father is unavailable or does not feel well enough to talk. Eventually, they are not allowed to speak to him at all. Two months later, after repeated angry exchanges with Ms. Smith, the eldest child receives a telephone message from Mr. Jones. In the message, Mr. Jones says, “She says I cannot call any of you anymore. If I do she will leave me and she says that at my age no one else will care for me, and that I will be alone. The same thing will happen if I stop giving her money. I know what she is doing, but I was so lonely after your mother died. I couldn’t bear to be that lonely again. I just hope that I can hold back enough money so she will stay until I die.” These were Mr. Jones’ last words to his children. He subsequently changed his estate plan – bequeathing everything to Ms. Smith.

Applying IDEAL to these facts:

Isolation – Mr. Jones’ children and friends live far away, he has no significant social contacts in his current living environment, his mobility is limited due to illness, Ms. Smith intercepts his telephone calls, and he is not allowed to talk to his children.

Dependency – Mr. Jones is emotionally dependent upon Ms. Smith, and she provides for his physical needs (food, cleaning, appointments, medicine). 

Emotional manipulation/Exploiting a weakness – Ms. Smith threatens to abandon Mr. Jones using his fear of loneliness.

Acquiescence – Mr. Jones agrees to Ms. Smith’s demands because he is frightened of being lonely, dependent upon her, and isolated from other social contacts and family. As a result, he gives her money and property, and makes her the sole beneficiary of his estate.

Loss – Mr. Jones suffers financial losses because of Ms. Smith’s threats and coercion. In this case, although criminal charges might have been pursued in some jurisdictions (ex. for elder abuse), the issue of “loss” was used only to support civil litigation.

Caveats and Suggestions:

Although it may seem obvious – do not rely only upon the litigants for information. The “Undue Influence Worksheet” and IDEAL are more effective if there are corroborating statements and observations by 3rd-parties, circumstantial evidence, and/or self-incriminating statements by the litigants. A case may be argued without such corroboration, but the use of IDEAL would be quite limited.

If more sophisticated analysis is needed, an expert should be contacted for advice regarding the development of both general and specific manipulation tactics, their relative impact, and assessment of pertinent cognitive issues (note: impaired cognition is common, but is not essential). These topics require extensive individual attention, and will not be presented in this introductory article.

Also, be cautious when retaining an expert on the issues of manipulation or undue influence. These are specialized fields and very few people are actual experts. Unfortunately, many well-intentioned mental health professionals claim this expertise without knowing how much training and knowledge is necessary.

Some attorneys report successful use of IDEAL without employing associated experts. In these cases, the attorney uses the information obtained through IDEAL and the “Worksheet” to craft a powerful and compelling argument – for either settlement or trial.

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