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Frank T. Adams of Dunwody White & Landon, P.A. in Coral Gables, Florida, was on the winning side of Kelley v. Kelley, an interesting 4th DCA opinion I wrote about here involving a collateral attack on a “quickie” Nevada divorce in connection with a Florida inheritance dispute.

I invited Frank to share some of the lessons he drew from this case with the rest of us and he graciously accepted.

[Q]  What strategic decisions did you make that were particularly outcome determinative at the trial-court level? On appeal?

[A] Once the decedent’s son abandoned the counts in the complaint challenging the validity of the will based on lack of testamentary capacity or mistake, he was left with his challenge to the exercise of the power of appointment in favor of Joanna by attacking the 1979 Nevada divorce. At both the trial court level and on appeal we relied on the fact that under Nevada law the son could not challenge the parent’s divorce. Nevada law precludes a challenge to the divorce proceedings from anyone other than the parties. If Nevada law would not allow Gordon, III to challenge the divorce, how could a Florida court grant those rights of the son. The court did not even need to get to the issue of the validity of the 1979 divorce. There was a 30+ year old decree from Nevada and no one with the right to challenge it. Obviously the decedent was not challenging it and the divorced wife (Gordon, III’s mother) could not challenge it because (i) she had been the petitioner in the divorce proceedings (is she going to tell the Nevada court that she committed a fraud upon it) and (ii) she IS REMARRIED (obviously she believes the 1979 divorce is valid). Since Gordon, III had no right to challenge the Nevada divorce, that count properly should be dismissed on a Motion to Dismiss.

[Q]  If you had to do it all over again, would you have done anything different in terms of framing the issues for your trial-court judge? On appeal?

[A] I think the courts got it right by seeing the case as controlled by the full faith and credit clause of the US Constitution. While we had several other arguments (in my mind most notably a lack of standing*) the best way for the courts to resolve the issue was to confirm the inability of our courts to overturn a sister-state’s order (from a case where the court had personal jurisdiction over the parties to that suit). We left the courts with no other choice, short of invalidating a 30 year old decree.

*The provisions in Gordon Jr’s Will exercising the power of appointment provided that if Joanna did not survive Gordon, Jr, then the trust assets (under the Gordon I trust agreement) were distributable to the charities. Since the charities were permissible appointees, even if Joanna was not the surviving spouse the trust assets should pass to the charities and not to Gordon, III, as the taker in default. The only remaining count did not claim that the charities were impermissible appointees.

[Q]  Do you think there’s anything that could have been done in terms of better estate planning to avoid this litigation or at least mitigate its financial impact on the family?

[A] In addition to being the attorney for the personal representative, I was Gordon Jr’s attorney and the draftsman of his Will. I had drafted Mr. Kelley’s prior documents and when he came in and told me that he wanted to cut his son out of his estate plan, obviously my antennae went up. I did what I have always done when such a case arises: (i) I discussed the client’s decision with him at length and, on more than 1 occasion; (ii) advised him that this was his, and only his, decision to make, but he needs to think long and hard about the decision – if you have any doubts, error on the side of including your child in the estate plan; (iii) spoke with Mr. Kelly again, a week after our meeting to confirm his decision to cut out his son; (iv) highlighted the fact that his son was cut out of the estate plan, when I forwarded the initial drafts to him; (v) went over every provision in the documents with Mr. Kelley, in person, before the documents were executed, making sure (a) he understood the documents; (b) he understood the consequences of his decision; (c)the documents accurately reflected his intentions; and (e) the decision was his alone (concluding in my own mind that he had testamentary capacity and was not being unduly influenced by anyone). Throughout the process I took copious notes, understanding that a will contest was likely to occur and that my estate planning file would likely be subject to disclosure through discovery. I feel I did all I could; and that was borne out by the fact that the counts in the original complaint based upon Incapacity, Mistake and Undue Influence, were all dropped by the son. During the estate planning, I really could not see coming a challenge to Mr. Kelley’s prior divorce (more than 25 years prior to the planning), in light of a marriage to Joanna of more than 20 years and the fact that I knew his ex-wife was also remarried.

[Q]  Any final words of wisdom for estate planners and probate lawyers of the world based on what you learned in this case?

[A] When a client wants to cut out a child you must immediately go into litigation mode. Expect there will be a contest, so make sure you take extra steps to make sure, in your own mind, that the testator has testamentary capacity. DOCUMENT your file, but keep in mind that it will become the subject of discovery.

One thing I do not believe I will do as a routine matter, will be to question the validity of the client’s prior divorce. While I will continue to question where and when the client got divorced and ask for a copy of the divorce decree for my file, I will not go beyond that and investigate the details of that divorce. While the court did not address the issue, what would have been the worst consequence if Gordon, III had been permitted to challenge the Nevada divorce, would have been the impact on both the estate planning and the probate. In the estate planning, it would have required the planner to interrogate his own client about the prior divorce and perhaps even discuss the matter with the divorce attorney who handled the matter. That would have been a nightmare. In the probate, when there is an intestacy or an election to take an elective share and either the decedent or the surviving spouse had been married previously, I require a copy of the divorce decree(s). (I have had a case where the decedent was never divorced from his prior spouse to the “surviving spouse” and was thus denied an elective share.) If the court had sided with Gordon, III, the probate attorney would have to not only obtain a copy of the divorce decree, but would also have to conduct a full investigation into the validity of those proceedings.