Tampa probate litigator Russell R. Winer was kind enough to point me to an interesting will-contest story in the St. Petersburg Times by staff writer Chris Tisch entitled A will casts a shadow on a prominent lawyer who stands to gain millions.
When I read the linked-to story two points jumped out at me. First, the decedent’s attorney wrote himself into the will, which is a clear ethics violation. Fla. Bar Rule 4-1.8(c) prohibits an attorney from preparing an instrument giving the attorney or a person related to the attorney any substantial gift from a client, including a testamentary gift, unless the client is related to the proposed donee. Second, bad facts can kill you at trial, even if these facts are arguably irrelevant as a matter of law. On this second point read the following excerpt from the linked-to story:
But one piece of evidence convinced the judge the most that something improper was occurring. In her order, Laughlin calls it “The Agreement.”
It was signed in 2002 by Carey, DuBois and Tornwall and their spouses. It says that no breach of fiduciary duty had occurred in regard to Murphy and that “should any of the parties have a mind to upset the grand plan, they should first check with the other two parties,” Laughlin wrote.
“This document wreaks of a consciousness of fraud, and the court finds it to be persuasive evidence of undue influence,” Laughlin wrote. “The Agreement is also compelling evidence that the perpetrators knew all of the elements of undue influence were present.”
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As for “The Agreement,” Fleece said it doesn’t reflect what should be most important in the case: Murphy’s intent.
“Does it look good? No. Did it really matter? No. It didn’t really deal with her intent,” Fleece said.
Murphy’s $7.2-million residuary estate remains in the hands of a curator until all appeals are exhausted.