Blinn v. Carlman, — So.3d —-, 2015 WL 1223665 (Fla. 4th DCA March 18, 2015) (trial-court order)
Who bears the burden of proof is often a decisive factor in will contests. Why? Because your single most important witness — the testator — is dead (think: “worst evidence rule”), which means we have to litigate these cases based solely on circumstantial evidence. This problem is especially acute in undue influence cases, which is why F.S. 733.107(2) permanently shifts the burden of proof in these cases once the “presumption” of undue influence is triggered (see here). In 1971 the Florida Supreme Court told us in In re: Estate of Carpenter,253 So.2d 697 (Fla.1971), that a presumption of undue influence gets triggered if the contestant proves: (1) the existence of a confidential relationship between the testator and the will’s proponent; and (2) active procurement of the contested will by the will’s proponent.
What about spousal undue influence cases?
But what if you’re barred as a matter of law from ever triggering the presumption of undue influence in your case? For example, under Florida law a wife’s confidential relationship with her husband can’t be used against her to prove undue influence, which means you’re never going to trigger the presumption in one of these cases. There’s a 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 this rule 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.
So are spousal undue influence claims impossible under Florida law? No, you just can’t rely on F.S. 733.107(2) to win your case by shifting the burden of proof.
In this case a will favoring a man’s surviving spouse was challenged on undue influence grounds by his daughter from a prior marriage. In August 2007 Richard Blinn married his fourth wife shortly before turning 82. In 2008 Mr. Blinn signed a new will disinheriting his daughter and leaving everything to his new wife. He died in 2012.
The decedent suffered from “numerous and serious” physical infirmities that continued until his death, as well as suffering from “progressive dementia,” which worsened over time. This kind of evidence is important not because it proves lack of capacity, but because it’s powerful circumstantial evidence of the testator’s heightened vulnerability to being unduly influenced. Here’s how the 4th DCA made this point:
As the trial court found, the decedent was “susceptible to undue influence due to his declining physical state, anxiety disorders, depression, and progressive dementia.” See Hack v. Estate of Helling, 811 So.2d 822, 826 (Fla. 5th DCA 2002) (stating that a testator’s “failed mental capacity … is a factor which should be considered, as supporting the undue influence claim.”); In re Perez’ Estate, 206 So.2d 58, 59 (Fla. 3d DCA 1968) (“It is true … that the amount of undue influence need not be great where a testator is weak and his intellect clouded.”).
This kind of evidence is necessary, but not sufficient to take one of these cases on. You also need to see evidence of an abrupt — and unexplained — change in the testator’s estate plan, which is exactly what happened here:
The 2008 will completely transformed Richard’s prior estate plan. In a 2006 will executed eight months after he met appellant, Richard devised the entire estate outright to his daughter, Patty, with his granddaughter as the alternate beneficiary. This will was consistent with an earlier will which provided for Richard’s family. Prior to meeting appellant, Richard financially assisted his children. However, the 2008 will devised the entire estate to appellant, with an existing charity created by Richard as the alternate beneficiary. Four months after the execution of the 2008 will, the charity was dissolved and all of its assets were distributed to a New Hampshire beneficiary.
OK, so far the facts look bad for fourth wife, but not fatal. In my opinion what ultimately tipped the scales against new wife’s 2008 will is the kind of “smoking gun” you should always look for before taking one of these cases on. As stated by the court, new wife gave us all a “rare” glimpse “into an abusive marital relationship” when she inadvertently left a long, self-damning voice recording of herself falsely accusing the decedent’s daughter of “stealing” from him and telling him his daughter was no “GD” good. Here’s how the 4th DCA described this evidence:
A significant insight into the dynamics of the marital relationship occurred when appellant inadvertently left a message on a cell phone of a former employee of Sovereign Yachts. She had dialed the number and forgot to hang up before she started in on Richard. On the voicemail, appellant was screaming at Richard that,
Patty was still running the company, that she was—and that she was still running the company, she’s lying to him, “She’s no GD good, I told you so, I told you she’s no GD good, she’s just taking your money doing stuff behind your back, she’s not telling you about this.”
At the beginning of the message appellant said, “[s]ee, Richard, I told you the number is still working. I told you she is stealing from you. She’s running the company and not telling you about it.” Although appellant claimed that it was Richard’s belief that Patty was stealing from him, it is clear that it was appellant who aggressively pushed this idea, without any evidence of Patty’s wrongdoing. It is rare in a case like this to have such a glimpse into an abusive marital relationship.
And if that wasn’t bad enough, in 2011, while the decedent was hospitalized and diagnosed with “severe dementia”:
[A]ppellant contacted the drafting lawyer’s law firm to send her estate planning documents for Richard and a durable power of attorney in favor of appellant; she said she would have the documents signed, witnessed, and notarized. The law firm complied with appellant’s request. The trial judge found that if appellant were “so bold as to openly display such influence over [the decedent],” then the court could “reasonably infer that similar or greater influence was occurring in the dark during their marriage.”
The general rule is that courts will bend over backwards to enforce wills, no matter how suspicious the circumstances might be or how “unfair” the outcome might seem — especially in cases involving wills favoring a spouse. This case is the exception. And it’s an example of how bad the facts have to be to win a spousal undue influence case. You don’t see this kind of self-incriminating evidence very often. But when you do, your client does have a viable cause of action.