Marshall v. HQM of Winter Park, LLC, — So.2d —-, 2007 WL 1647561 (Fla. 5th DCA Jun 08, 2007)

In Florida a death certificate is part of every probate proceeding.  The fact that these documents are given conclusive effect in uncontested probate proceedings probably explains why parties attempt to use them to the same effect in contested proceedings, and end up getting reversed on appeal if the trial judge goes along with them (see here).

In the linked-to case a death certificate was used to obtain a summary judgment ruling disposing of a wrongful death claim.  The trial court was reversed on appeal based on the following black letter Florida law:

In granting summary judgment, the trial judge apparently gave conclusive effect to the death certificate and disregarded the opinion of Appellants’ expert. This was error. A death certificate is prima facie proof of the “fact, place, date, and time of death as well as the identity of the decedent.” § 731.103(2), Fla. Stat. (2007). It does not constitute prima facie proof of the cause of death, nor does it create conclusive proof of any fact related to the death. As it relates to the cause of death, it simply states the ultimate opinion of the attesting physician. When, as here, a conflicting medical opinion on causation is offered, summary judgment is not appropriate.

Lesson learned?

Death certificates may be necessary to your case, but they are rarely sufficient to get the job done in contested proceedings.  If the circumstances surrounding a decedent’s death are being contested, make sure your client understands that simply pulling out a death certificate containing helpful facts will NOT win the day in court (i.e., client should understand and expect to incur the expense and delay inherent to any case where circumstantial evidence is being contested).

Cardinal rule of all litigation: no surprises! (I’ve ranted on this point before).

Key v. Trattmann, — So.2d —-, 2007 WL 1517827 (Fla. 1st DCA May 25, 2007)

A common theme running through much trusts and estates litigation is the betrayal of confidences.  Be it among family members or erstwhile friends, notions of fairness — not commercial imperatives — often drive the litigation.  The linked-to case speaks to this point by providing an effective tool for successfully contesting title to real property on equitable grounds under a "resulting trust" theory.

Resulting Trusts

In the linked-to case "Mr. Key" purchased and maintained real property in Tallahassee with his own funds. In order to help "Mr. Trattmann" obtain U.S. citizenship, Mr. Key allowed the property to be titled in Mr. Trattmann’s name, subject to Mr. Trattmann’s promise to convey the property to him on demand.  Mr. Trattmann later denied the existence of this promise, and Mr. Key sued to obtain title.  The trial court granted summary judgment in Mr. Trattmann’s favor based partly on two affirmative defenses: the claim was barred by (1) the statue of frauds and (2) the applicable statue of limitations.  In the linked-to opinion the 1st DCA reversed the trial court, and in the process provided an excellent litigation road map for counsel/parties finding themselves on either side of a resulting trust claim.

  • Florida law

As a starting point, the 1st DCA summarized the circumstances under which Florida courts may recognize the existence of a resulting trust:

A resulting trust arises where an express trust fails, in whole or in part; where the purposes of an express trust are fully accomplished, without exhausting the trust estate; or, of particular pertinence here, “‘where a person furnishes money to purchase property in the name of another, with both parties intending at the time that the legal title be held by the named grantee for the benefit of the unnamed purchaser of the property.’“ Steigman v. Danese, 502 So.2d 463, 467 (Fla. 1st DCA 1987) (quoting Steinhardt v. Steinhardt, 445 So.2d 352, 357-58 (Fla. 3d DCA 1984)), disapproved of on other grounds by Spohr v. Berryman, 589 So.2d 225, 228-29 (Fla.1991), and order vacated by In re Estate of Danese, 601 So.2d 570, 571 (Fla. 1st DCA 1992). See also F.J. Holmes Equip., Inc. v. Babcock Bldg. Supply, Inc., 553 So.2d 748, 749 (Fla. 5th DCA 1989) (“A resulting trust may arise in favor of one who furnishes money used to purchase property the legal title to which is taken in the name of another.”). A resulting trust can, indeed, be “founded on the presumed intention of the parties that the one furnishing the money should have the beneficial interest, while the other held the title for convenience or for a collateral purpose.” Frank v. Eeles, 13 So.2d 216, 218 (Fla.1943) (internal quotation marks and citation omitted). See also Restatement (Third) of Trusts § 7 cmt. c (2003).

  • Statute of Frauds: NOT applicable

The trial court found that even if a resulting trust had arisen, the plaintiff’s claims were barred by Florida’s statute of frauds because the promise to convey the real property alleged by the plaintiff was not in writing.  The 1st DCA rejected the trial court’s ruling as follows:

The statute of frauds does not apply to resulting trusts . . . [b]ecause a resulting trust arises not ex contractu but by operation of law, the statute of frauds does not pertain. See, e.g., Williams v. Grogan, 100 So.2d 407, 410 (Fla.1958) (“A trust which is created by operation of law is not within the statute of frauds and may be proved by parol evidence.”); Stonley v. Moore, 851 So.2d 905, 906 (Fla. 3d DCA 2003) (reversing summary judgment entered on a claim seeking to establish a resulting or constructive trust where the trial court relied on the statute of frauds, because “‘resulting trusts involving real estate can be based on parol evidence’”) (quoting Zanakis v. Zanakis, 629 So.2d 181, 183 (Fla. 4th DCA 1993)).

  • Statute of Limitations: the clock starts ticking when the dispute is made known, NOT when the contested property is first purchased

In trust disputes, determining when the clock starts ticking for statute of limitations grounds can be tricky.  In fact, the Florida Bankers Association is currently proposing revisions to the current statute of limitations applicable to trust disputes (see here).

Although unclear from the opinion, the trial court apparently assumed that the cause of action arose at or about the time the property was first purchased.  The 1st DCA rejected that conclusion, making clear that under Florida law trust disputes do not accrue until the trustee actually repudiates the trust.

Applying a statute of limitations to a resulting trust,[FN5] the Fifth District held that the “beneficiary of a resulting trust is not bound to act until the trustee repudiates the trust or begins to hold the property adversely with knowledge on the part of the beneficiary.” Bradbury v. Fuller, 385 So.2d 7, 8 (Fla. 5th DCA 1980). See also Grable v. Nunez, 64 So.2d 154, 160 (Fla.1953) (“The statutes of limitations do not operate against a resulting trust until the trustee has disclaimed the trust and begins to hold adversely to the beneficial interest.”). Thus, assuming [as the trial court did that F.S. 95.11(3)(k) and (6)] applies, it would not have begun running until Mr. Trattmann refused to convey the property to Mr. Key.


FN5. The rights of beneficiaries of resulting trusts to enforce their rights against the trustee or third persons are subject to the same rules regarding the doctrine of laches and statutes of limitations as apply in the case of express trusts. See § 98, and also compare §§ 96 and 97. The so-called doctrine of merger, which applies to express trusts (see § 69), also applies to resulting trusts.

Restatement (Third) of Trusts § 7 cmt. h (2003). See also supra note 1.

One of the basic building blocks of Florida probate law is the “life estate” in homestead property all surviving spouses are entitled to.  The statutory basis for this rule is found in F.S. 732.401(1), which provides as follows:

(1) If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes.

Pretty basic stuff for any Florida probate practitioner.  What may not be so simple is explaining the real life practicalities of a life estate to a surviving widow.  Which is why you may want to keep a copy of The New Homestead Trap: Surviving Spouses Are Trapped by Life Estates They No Longer Want or Can Afford handy.  In this just published article Ft. Lauderdale attorney Jeffrey A. Baskies does a good job of explaining the costs assumed by surviving spouses/life tenants, a point often overlooked by families and their advisers.

Costs Borne by Life Tenants

F.S. §738.801 provides in part that “the provisions of F.S. §738.701-738.705 … shall govern the apportionment of expenses between tenants and remaindermen when no trust has been created….” In the absence of some agreement, those provisions apply to all life estate/remainder situations created by the Florida homestead laws (created by the constitutional restrictions on devise in art. X, §4 of the state’s constitution and F.S. §732.401).

Taken together, these statutes require the life tenant to pay:

  • All of the ordinary expenses incurred in connection with the administration, management, or preservation of property, including ordinary repairs (including condo or homeowners’ association maintenance charges) and regularly recurring taxes (ad valorem property taxes).
  • The interest portion of mortgage payments, if any, on the property.
  • Recurring premiums on insurance covering the loss of a principal asset or the loss of income from or use of the asset.
  • The costs of, or special taxes or assessments for, an improvement representing an addition of value to property shall be paid by the tenant when the improvement is not reasonably expected to outlast the estate of the tenant. In all other cases, a part only shall be paid by the tenant, ascertainable based on the present value of the tenant’s estate (actuarially).

Thus, surviving spouses — who are ostensibly “protected” by the Florida Constitution and statutes (given the “right” to live “rent-free in a homestead”) — are required to bear 100 percent of the burden of the state’s two largest fiscal crises: the escalation in property taxes and homeowners’ insurance. In addition, costs of ordinary upkeep, interest payments on mortgages and, in many cases, virtually all of the special assessments are also the burden of the surviving spouse. Further exacerbating the situation, many widows live in communities which have charged (and are still charging) assessments to repair common areas damaged by the hurricanes the state faced these past few years — with the promise of active hurricane seasons for the foreseeable future.

While the surviving spouses have borne all of these huge increases in their costs of living, the remainder beneficiaries have seen property values double in most of the state (and increase three to five times in some areas) over the past five to 10 years. One hundred percent of that appreciation inures to the benefit of the remainder beneficiaries, while they are not forced to pay for any of these increased expenses.

Contrast the “rent free” use of the property by the widow with the “free ride” the remainder beneficiaries have had on property values, and ask who is being helped and who is being harmed by our homestead “protections”? The costs of property taxes and homeowners’ insurance have skyrocketed at the same time property values have appreciated at a meteoric pace. This situation has exposed in stark relief the discrepancy in treatment and benefits of surviving spouse life tenants and remainder beneficiaries.

The Trust Law Committee met last week.  I apologize for not posting this sooner, but a very hectic trial schedule kept me away from the blog last week. Regardless, my principal reason for posting the committee meeting Agenda and Minutes is to disseminate the following reports/White Papers:

  • Holding of legal title of entirities property in trust
  • Republication of invalid trust by amendment
  • Proposed Trust Code amendment: Directed Trusts
  • Proposed Trust Code amendment: Statute of Limitations on Claims Against Trustees

Questions/comments regarding the meeting should be directed to the committee chair: Barry F. Spivey.

Below is a copy of the email announcing the last Probate and Trust Litigation Committee meeting.  I apologize for not posting this sooner, but a very hectic trial schedule kept me away from the blog last week.  Regardless, my principal reason for posting these announcements is to disseminate the attached reports/White Papers.

The committee meeting Agenda and Minutes contain the following reports/White Papers:

  • Fiduciary Lawyer-Client Privilege: Approved by EC [ITEM 3]
  • Arbitration clause in a will or trust is enforceable. Passed in Legislature 2007-HB 311 [ITEM 3]
  • Exculpatory clause in a will: Passed in Legislature 2007 –HB 311[ITEM 3]
  • Payment of trustee’s fees from trust assets: Pending approval of EC [ITEM 4]
  • Crafting an appellate rule on which Orders are Appealable in a Probate Proceeding? Sean Kelley, Tom Karr, Peter Sachs [ITEM 5] (Appellate Rule Project – White Paper.pdf)
  • Collateral Attack on the Validity of A Marriage after Death Based Upon Undue Influence Bill Hennessey, Laura Sundberg, Russ Snyder [ITEM 6]
  • Revisions to Rule 1.525 concerning 30 day time limit for filing a motion for attorneys’ fees [ITEM 7] Angela Adams, Eric Virgil, Laura Sundberg (R. 1.525 – Taxation of fees.pdf, Family Law 12.525.pdf)
  • ACTEC Model Arbitration Legislation. [ITEM 8] Bob Goldman

Questions/comments regarding the meeting should be directed to the committee chair: Jack A. Falk

From: Falk, Jack A. [mailto:jfalk@dwl-law.com]
Sent: Monday, May 21, 2007 7:10 PM
To: Falk, Jack A.
Subject: Probate and Trust Litigation Committee meeting on Thursday, May 24, 2007 at 4:00 p.m. in Hollywood, Florida

Dear Committee Members,

The Probate and Trust Litigation Committee will be meeting from 4:00 to 6:00 p.m. on Thursday, May 24, 2007 at the Westin/Diplomat in Hollywood, Florida, in conjunction with the Real Property, Probate and Trust Law Section’s Executive Council meeting. Attached please find the Agenda and Minutes with pdf attachments that are part of the Agenda materials for the meeting.

I look forward to seeing you at the meeting! Jack

<<Appellate Rule Project – White Paper.pdf>> <<R. 1.525 – Taxation of fees.pdf>> <<Family Law 12.525.pdf>> <<Agenda and minutes May 2007.pdf>>

Diaz v. Ashworth, — So.2d —-, 2007 WL 1484550 (Fla. 3d DCA May 23, 2007)

A prospective client comes to see you about challenging a will on undue influence and/or lack of testamentary capacity grounds.  The client wants to know “how much will it cost, how long will it take, what are my chances of winning?”  You ask yourself what may be the most important question of all “should I take this case?” Unless you understand the evidentiary issues you’ll need to address in connection with each claim, you can’t possibly expect to answer any of the questions posed above with any degree of certainty.  And misjudging those questions usually equals an unhappy client who doesn’t want to pay his lawyer (yikes!)

Which is why the linked-to opinion is so important.  In this case the highly regarded Miami-Dade senior trial judge, Herbert Stettin, did such a good job of laying out the evidentiary issues underlying a will contest based upon undue influence and lack of testamentary capacity grounds, that the 3d DCA simply copied his order and adopted its reasoning as their own.

Evidence and Undue Influence Claims:

I found the discussion addressing evidentiary issues arising in an undue influence case especially helpful.  When reading the excerpt provided below, keep in mind the following three points.

  • Key statute: §733.107(2)
  • Burden of proof: preponderance of the evidence
  • Building your case: note the importance given to medical testimony

For further background, an excellent starting place is Florida’s New Statutory Presumption of Undue Influence, 77 Fla. B.J. 20, 21 (2003).

Judge Stettin:

Petitioner’s second claim is that Mr. and Mrs. Ashworth unduly influenced Mr. Mesa to make the July 10, 2003 will. Father Diaz argues that the evidence shows the Ashworths never had a prior close relationship with Mr. Mesa, that their deep involvement in the making of the will, together with their attempts to insulate Mr. Mesa from contact with others after the will was made, all done at a time when Mr. Mesa was in the final stages of the AIDS illness, prove that the Ashworths obtained the will in question by unduly influencing Mr. Mesa’s decision.

[Carpenter analysis]

The starting point to determine whether a will has been procured by the exercise of undue influence is the analysis required by In re: Estate of Carpenter, 253 So.2d 697 (Fla.1971). Under Carpenter, once it is established by the proponent that the will was properly executed, the contestant then must show, prima facie, the existence of a confidential relationship between the testator and the active procurement of the will by the proponent. Carpenter discusses those factual circumstances which may give rise to such a determination which, once made, results in a presumption that the will is the product of undue influence. Using the Carpenter test, I find that a presumption of undue influence was established by the evidence. Mr. Ashworth is the sole beneficiary under the July 10, 2003 will; he was present at its execution; Mrs. Ashworth was present on July 9, 2003, when Mrs. Mesa stated that he wished to make a will; Mr. Ashworth recommended that his attorney, Mr. Pilafian, draw the will; while disputed as to whether he learned of it on July 9 or July 10, 2003, Mr. Ashworth was aware of the contents of the will before it was signed; and Mrs. Ashworth was one of the subscribing witnesses. Add to this fact that Mr. Ashworth brought Mr. Mesa to Mr. Pilafian’s office to sign the will and that he and his wife were active in caring for him after the will was signed, and it is clear the Ashworths occupied a confidential relationship with Mr. Mesa.

[Shifting burden of proof under Carpenter]

Carpenter provides that once evidence of such a presumption of undue influence has been made, it does not shift the burden of proof to the proponent of the will to prove the will was not the product of undue influence. Rather, it merely shifts to the proponent “the burden of coming forward with a reasonable explanation for [the beneficiary’s] active role in the decedent’s affairs, and specifically, in the preparation of the will …”. 253 So.2d at 704. Carpenter holds that it then becomes the responsibility of the trial court to determine whether the proponent has, prima facie, satisfied this burden of reasonable explanation. Finally, once all these presumptions and burdens are met, the decision rests on the traditional evidentiary test of who has proven their case by a preponderance of the evidence.

[Impact of F.S. 733.107(2) on Carpenter analysis]

Subsequent to Carpenter, however, the legislature enacted an amendment to § 733.107, Fla. Stat ., to prohibit the shifting of the burden of proof in presumption of undue influences cases. See, e.g., Hack v. Janes, 878 So.2d 440, 443 (Fla. 5th DCA 2004). As it now stands, in those cases where the proponent of a will satisfies, prima facie, a presumption of undue influence in the making of the will, the proponent of the will has the burden of proving the will was not the product of undue influence. That burden must be met by a preponderance of the evidence as determined by the trier of fact.

[Application of law to facts]

Using these standards, I find that the Petitioner has proven by a preponderance of the evidence that the will was not the product of undue influence by Mr. and Mrs. Ashworth. Mr. Mesa was capable of making his own decision about who would receive his property when he signed the Ashworth will. The will he signed on July 10, 2003, and the two previous wills he made in the two years prior to 2003, each named non-relatives as beneficiaries. Each will was very basic. On July 10, 2003, Mr. Mesa knew what a will was and he was clear about his wishes as to who should inherit his property. On the same day as the Ashworth will, Mr. Mesa also made another significant decision to reject further medical treatment and to enter hospice care at his home rather than spend his last days in an institution. Dr. Steinhart’s records and testimony are clear that Mr. Mesa was competent to make these decisions. I find the preponderance of the evidence in this case is that Mr. Mesa was competent and not unduly influenced in making the will dated July 10, 2003.

Evidence and Lack of Testamentary Capacity Claims:

I wrote about the last 3d DCA testamentary capacity case here.  Without mentioning that opinion (perhaps purposely?), Judge Stettin also did a great job of summarizing the state of the law in Florida with respect to what it takes to successfully prosecute a will challenge based on lack of testamentary capacity (again notice the importance given to medical testimony).  Here again the 3d DCA simply adopted his reasoning as its own.

Judge Stettin:

In Raimi v. Furlong, 702 So.2d 1273, 1286 (Fla. 3d DCA 1998), our Third District concisely set out the applicable standards for a determination of testamentary incompetence, stating:

It has long been emphasized that the right to dispose of one’s property by will is highly valuable and it is the policy of the law to hold a last will and testament good wherever possible. See In re Weihe’s Estate, 268 So.2d 446, 451 (Fla. 4th DCA 1972), quashed on existing facts, 275 So.2d 244 (Fla.1973); In re Dunson’s Estate, 141 So.2d at 604. To execute a valid will, the testator need only have testamentary capacity (i.e. be of “sound mind”) which has been described as having the ability to mentally understand in a general way (1) the nature and extent of the property to be disposed of, (2) the testator’s relation to those who would naturally claim a substantial benefit from his will, and (3) a general understanding of the practical effect of the will as executed. See In re Wilmott’s Estate, 66 So.2d 465, 467 (Fla.1953); In re Weihe’s Estate, 268 So.2d at 448; In re Dunson’s Estate, 141 So.2d at 604. A testator may still have testamentary capacity to execute a valid will even though he may frequently be intoxicated, use narcotics, have an enfeebled mind, failing memory, [or] vacillating judgment.” In re Weihe’s Estate, 268 So.2d at 448. Moreover, an insane individual or one who exhibits “queer conduct” may execute a valid will as long as it is done during a lucid interval. See Id.; see also Coppock v. Carlson, 547 So.2d 946, 947 (Fla. 3d DCA 1989) (whether testator had the required testamentary capacity is determined solely by his mental state at the time he executed the instrument), rev. denied, 558 So.2d 17 (Fla.1990).

[Application of law to facts]

Applying these standards, I find that Mr. Mesa was competent to make the July 10, 2003, Ashworth will. He understood the nature and extent of his property, he knew those who would naturally claim a substantial benefit from his will, and it is clear that he was aware of the practical effect of the will he signed. He knew that he was going to die. He made an informed decision to accept hospice care instead of further treatment just prior to making the Ashworth will. Dr. Steinhart believed Mr. Mesa was competent to make such an obviously important decision.

Bryan v. Dethlefs, — So.2d —-, 2007 WL 1425499 (Fla. 3d DCA May 16, 2007)

In this case the beneficiary of his predeceased grandfather’s trust died before the trust assets were fully distributed to him.  The subsequent litigation revolved around this question: in order to vest under the trust, does the following trust clause require the beneficiary to be living at the time of the settlor’s death, or upon full distribution of his inheritance under the trust?

Distribution to Grandson: Upon my death, the then balance of principal and accumulated income remaining in the trust fund shall be distributed to my Grandson, ROBERT R. BIZZELL, if he is living at the time of distribution. (emphasis added).

Miami-Dade County Probate Judge Arthur L. Rothenberg ruled the vesting event was the settlor’s date of death, and the 3d DCA affirmed.

Lesson learned: when in doubt, it’s vested – NOT contingent

Rules of construction can be useful tools because they tip the scales in favor of a certain interpretation when the subject text is less than crystal clear.  That’s what happened in this case.  The following excerpt from the linked-to opinion provides useful guidance with respect to the rules of construction applicable if there is any doubt that an inheritance vests immediately or is contingent upon some future event:

[T]he law favors the early vesting of estates. Lumbert v. Estate of Carter, 867 So.2d 1175, 1179 (Fla. 5th DCA 2004)(citing Sorrels v. McNally, 89 Fla. 457, 105 So. 106 (1925)). As this Court stated in Estate of Rice v. Greenberg, 406 So.2d 469 (Fla. 3d DCA 1981), any doubt as to whether an interest is vested or contingent should be resolved in favor of vesting:

This Court is committed to the doctrine that remainders vest on the death of the testator or at the earliest date possible unless there is a clear intent expressed to postpone the time of vesting. It is also settled that in case of doubt as to whether a remainder is vested or contingent, the doubt should be resolved in favor of its vesting if possible, but these general rules all give way to the cardinal one that a will must be construed so as to give effect to the intent of the testator.

406 So.2d at 473 (quoting Krissoff v. First Nat. Bank of Tampa, 32 So.2d 315 (Fla.1947)). Accordingly, no estate should be held to be contingent “unless very decided terms are used” and “unless there is a clear intent to postpone the vesting.” Sorrels, 89 Fla. at 467, 105 So. at 110. Indeed, “[t]he presumption that a legacy was intended to be vested applies with far greater force, where a testator is making provision for a child or grandchild, than where the gift is to a stranger or to a collateral relative.” Sorrels, 89 Fla. at 467, 105 So. at 110.

Finally, if a trust vests at the settlor’s death, then “the death of the beneficiary before it becomes payable does not cause the legacy or devise to lapse.” Sorrels, 89 Fla. at 465, 105 So. at 110. Similarly, where a settlor intends a trust to vest upon the testator’s death, benefits accrue to the beneficiaries from the time of the death, not the subsequent time that the trust was funded. In re Bowen’s Will, 240 So.2d 318, 320 (Fla. 3d DCA 1970).

As reported here by the New York Probate Litigation Blog, a New York jury found last month, in a mixed verdict, that Jonathan Blattmachr, one of the country’s leading trusts and estates lawyers, breached his fiduciary duty to a client in connection with a planning strategy called a “split-dollar insurance arrangement,” involving the purchase of life insurance to avoid estate taxes.

The following is an excerpt from Jury: Milbank’s Blattmachr Breached His Fiduciary Duty, as reported in the WSJ Law Blog:

Among the T&E bar, wrote New York Times tax reporter David Cay Johnston in his book “Perfectly Legal,” Blattmachr “enjoys the status of some Hollywood stars — his first name alone prompts recognition.” (We know Blattmachr’s a big macher, but can the name “Jonathan” alone really prompt recognition?)

But one of Blattmachr’s wealthy clients, Marvin Schein, was none too happy with Blattmachr’s services. Schein, whose father founded medical-supplies company Henry Schein Inc., sued Blattmachr and Milbank in 2003. Click here for the amended complaint, in which Schein alleged, among other things, that Blattmachr persuaded Schein to pursue a tax-avoidance strategy even though Blattmachr sensed IRS hostility toward it.

The strategy, called a “split-dollar insurance arrangement,” involved the purchase of life insurance to avoid estate taxes. In December 2000, Schein paid roughly $12 million in premiums for about $340 million in life-insurance policies. The IRS effectively halted the strategy in August 2002, a move Schein said rendered his policies useless.

The Wills, Trusts & Estates Prof Blog reported here on an interesting West Virginia case revolving around whether a mentally ill man who killed his mother and plead not guilty by reason of insanity is excluded from her estate under Virginia’s slayer statute.

The case is discussed in detail in Estate Claims “Insane” Killer Can’t be Victim’s Heir:

The estate of a woman who was killed by her mentally ill son may create new law in West Virginia by seeking to bar him from inheriting any of her assets even though he was not technically convicted of a crime.

Richard O’Neal pleaded not guilty by reason of insanity to the murder of his mother, whom he suffocated to death in her Charleston home in March 2005. A judge accepted the plea and ordered him committed to a state mental health facility for up to 40 years or until a further order of the court.

Under West Virginia’s “slayer’s statute,” “No person who has been convicted of feloniously killing another … shall take or acquire any money or property, real or personal, or interest therein, from the one killed.”

As one of Bonnie O’Neal’s three sons, Richard is entitled to a one-third share of her estate. But in a declaratory relief claim, her executor says that given his responsibility for her death, it would be “inequitable” and a violation of the “slayer’s statute” for him to receive that share.

“While the slayer’s statute applies ostensibly when there is an actual felony conviction in connection with the wrongful act, the public policy of West Virginia prohibits Richard G. O’Neal from profiting from his wrongful act,” the complaint, filed in Kanawha County Circuit Court, states.

Florida’s Slayer Statute:

Florida’s slayer statutes are found at F.S. § 732.802 (probate estates) and F.S. § 737.625 (trust estates).  Unlike the West Virginia statute, the Florida statute is drafted broadly enough to give the trial judge the discretion necessary to disinherit a killer even if he or she isn’t actually convicted of murder.  Here is the key language from F.S. § 732.802:

(1) A surviving person who unlawfully and intentionally kills or participates in procuring the death of the decedent is not entitled to any benefits under the will or under the Florida Probate Code, and the estate of the decedent passes as if the killer had predeceased the decedent.

.  .  .  .  .

(5) A final judgment of conviction of murder in any degree is conclusive for purposes of this section. In the absence of a conviction of murder in any degree, the court may determine by the greater weight of the evidence whether the killing was unlawful and intentional for purposes of this section.

 

The following is from the Wills, Trusts & Estates Prof Blog:

By Texas Senior U.S. District Judge Jerry Buchmeyer, et cetera, 70 Tex. B.J. 193 (2007):

    D. Clinton Brasher of Beaumont, Texas, received these marvelous admissions “from defense counsel regarding an employee of theirs (up until the time of his death)” who was listed as a fact witness:

1. Admit that ______ is dead.

RESPONSE: Admit insofar as this question is regarding information regarding the death of ______’s body, as his spirit surely lives on.

2. Admit that ___________ will be unavailable to testify at trial.

RESPONSE: Admit subject to ___’s coming back to life and subsequently testifying in this matter, or, for that matter, testifying through a duly appointed oracle. … Inasmuch as this request for admission is meant to cover such things other than whether or not ____ will be available to testify live at trial, no pun intended, Plaintiff objects to the request as vague.