Levin v. Levin, — So.3d —-, 2011 WL 1772245 (Fla. 4th DCA May 11, 2011)

In a case concerning the “insane delusion” question, a mother thought that her daughter, Gail, had only visited her once in 11 years. The mother wrote her daughter an e-mail to this effect, and repeated the accusation to the attorney who drafted her will and trust. But the record contained evidence that indicated that Gail had visited her mother several times in the seven years prior to the execution of her mother’s will and trust.

Here’s how the 4th DCA summarized the standard for setting aside a will on “insane delusion” grounds:

Gail claims that the will and trust were based upon an “insane delusion.” The law states that “[w]here there is an insane delusion in regard to one who is the object of the testator’s bounty, which causes him to make a will he would not have made but for that delusion, the will cannot be sustained.” Miami Rescue Mission, Inc. v. Roberts, 943 So.2d 274, 276 (Fla. 3d DCA 2006) (quoting Newman v. Smith, 77 Fla. 633, 82 So. 236, 236 (1919)). “An insane delusion is a ‘spontaneous conception and acceptance as a fact, of that which has no real existence adhered to against all evidence and reason.’” McCabe v. Hanley, 886 So.2d 1053, 1055 (Fla. 4th DCA 2004) (citation omitted).

The trial court upheld the challenged will on testamentary capacity grounds, but failed to address the “insane delusion” claim in its post-trial order. This omission ended up getting the case bounced back to the trial judge for a new trial on this issue alone.

In the present case, the mother persisted in the belief that Gail had visited her only once in about ten years. The mother told William and the attorney who prepared the will and trust that she had not seen Gail anywhere from ten to eleven years ago.FN1 The mother sent Gail an email complaining that Gail had been to see her only once in eleven years. Gail replied and disputed in detail the mother’s contention.

FN1. In the taped execution of the will and trust documents, the mother again repeated to the attorney that she had not “seen my daughter but one time in seven years.”

In the record, there was evidence that the mother and Gail had seen each other multiple times within the seven-year period preceding the execution of the testamentary documents.FN2 The trial court did not address the evidence of visitations between the mother and Gail or that the evidence appeared to contradict the many assertions by the mother that Gail had not visited her in seven to eleven years. Thus, the trial court never decided whether this contradiction in evidence rose to the level of “insane delusion” and whether this incorrect statement repeated by the mother was linked to reducing the bequest to Gail from the 1987 will to the amount given to her in the disputed will and trust. We therefore reverse on this issue for the trial court to make findings on this issue either after reviewing the record or, in its discretion, after an evidentiary hearing.FN3

FN2. The record denotes that Gail and her mother saw each other in February 2001, August 2002, January 2003, September 2003, January 2004, January 2005, and March 2007.