By anticipating evidentiary issues unique to estate claims planners can ensure the proper record is developed to shield an estate plan against future attack and also make sure clients avoid inadvertently creating a record that might undermine their estate plans in the future.

1.         General Rule; Self-Proving Affidavits

The initial burden is upon the proponent of a will to establish prima facie formal execution and attestation of the will. F.S. §733.107(1). The value of self-proving affidavits should not be underestimated with respect to this evidentiary point. Under F.S. §733.201(1) a will that is “self-proved” in accordance with the statutory form provided in F.S. § 732.503 is admissible to probate without the testimony of the attesting witnesses. If the will is not self-proved under F.S. § 733.107 the proponent of the will has the burden of establishing “prima facie” its formal execution and attestation via the alternate options spelled out in F.S. §733.201(2) and (3).

A simple statutory form can make all the difference in the world if it shifts the burden of proof in a will contest. A recent example underscores this point. In Jordan v. Fehr, 902 So.2d 198 (Fla. 1st DCA 2005), one of the attesting witnesses described his role as follows:

“I’m like a monkey, I wrote my name and address and I was gone.”

Based on this kind of testimony is it any wonder that the First DCA reversed the trial court’s refusal to grant summary judgment in favor of the party challenging the will? Would the outcome have been different if the attesting witnesses had simply signed a self-proving affidavit and thus shifted the burden of proof to the challenging party? Maybe not, but then again, maybe it would have been just enough to tip the case the other way. Yes, a simple statutory form can be a big deal.

2.         Shifting Burden of Proof in Undue Influence Cases

Effective April 23, 2002, F.S. §733.107 was amended to add a new subsection (2) providing: “The presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301-90.304.” F.S. §90.302(2) provides a presumption affecting the burden of proof; it “imposes upon the party against whom it operates the burden of proof concerning the nonexistence of the presumed fact.” In other words, once the presumption of undue influence is established by a challenger, the proponent must affirmatively disprove the existence of undue influence. Obviously, planners must be sensitive to any situation that might give rise to such presumption. In general the presumption is created by showing that one having a substantial benefit under the will possessed a confidential relationship with the decedent and was active in the procurement of the will. The prong to focus on here is “active procurement.” Planners need to be especially sensitive to the existence of factors considered relevant by Florida courts when determining if the alleged undue influencer “actively procured” the will or trust benefiting him or her. These factors include: 

  • presence of the beneficiary at the execution of the will; 
  • presence of the beneficiary on those occasions when the testator expressed a desire to make a will; 
  • recommendation by the beneficiary of an attorney to draw the will; 
  • knowledge of the contents of the will by the beneficiary prior to execution; 
  • giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; 
  • securing of witnesses to the will by the beneficiary; and 
  • safekeeping of the will by the beneficiary subsequent to execution.

3.         Attorney as Witness

Communications concerning a will by the testator to his or her attorney are not privileged after the demise of the testator. F.S. §90.502(4)(b). See also Swidler & Berlin v. U.S., 524 U.S. 399, 118 S.Ct. 2081 (1998):

[T]he general rule with respect to confidential communications . . . is that such communications are privileged during the testator’s lifetime and, also, after the testator’s death unless sought to be disclosed in litigation between the testator’s heirs. [Citation omitted.] The rationale for such disclosure is that it furthers the client’s intent.   [Citation omitted.] Indeed, in Glover v. Patten, 165 U.S. 394, 406-408, 17 S.Ct. 411, 416, 41 L.Ed. 760 (1897), this Court, in recognizing the testamentary exception, expressly assumed that the privilege continues after the individual’s death. The Court explained that testamentary disclosure was permissible because the privilege, which normally protects the client’s interests, could be impliedly waived in order to fulfill the client’s testamentary intent. [Citation omitted.]

Attorneys should also consider whether or not they might be needed as litigation counsel for the estate. The preferred practice appears to be for an attorney who anticipates testifying to decline to serve as advocate for either side of the controversy. See Rule Reg. Fla. Bar 4-3.7. The following excerpt from the official “Comment” to Rule 4-3.7 articulates the prejudice/conflict-of-interest concerns underlying the rule:

Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and client.

The opposing party has proper objection where the combination of roles may prejudice that party’s rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.

In Eccles v. Nelson, 919 So.2d 658 (Fla. 5th DCA 2006), the trial court’s ruling disqualifying the will-drafting attorney as litigation counsel was upheld on appeal by the 5th DCA on the following two grounds: First, Rule 4-3.7 supports disqualification and, second, disqualification of the will-drafting attorney did not violate his client’s constitutional First Amendment right to association because Florida courts have a substantial and legitimate governmental interest in protecting the integrity of the litigation process.

Attorney-client privilege issues also need to be considered anytime a trustee is the target of breach-of-trust allegations. In those instances whether or not the trustee’s confidential communications with his or her attorney are privileged may turn on the court’s determination of who the attorney’s “real client” is: the trustee or the beneficiaries. The Second DCA recently addressed this issue in Tripp v. Salkovitz, 919 So.2d 716 (Fla. 2d DCA 2006), articulating the governing Florida rule as follows:

Usually, a lawyer retained by a trust represents the trustee, not the beneficiary, even though the fees are paid with trust funds that would otherwise go to the beneficiary. If the attorney represents the trustee, the trustee holds the lawyer-client privilege. In some circumstances, however, the beneficiary may be the person who will ultimately benefit from the legal work the trustee has instructed the attorney to perform. See, e.g., Riggs Nat’l Bank of Washington, D.C. v. Zimmer, 355 A.2d 709, 711 (Del.Ch.Ct.1976) (noting that legal memorandum concerning trust tax issues, written before beneficiaries’ litigation against trustee began, was prepared for the benefit of the trust beneficiaries) (cited in [ Barnett Banks Trust Co., N.A. v.] Compson, 629 So.2d [849, 850 (Fla. 2d DCA 1993)]). In that situation, the beneficiary may be considered the attorney’s “real client” and would be the holder of the lawyer-client privilege. But if the “real client” is the trustee, the beneficiary would have to prove the existence of some exception to overcome the privilege. [Citation omitted.]