Undue Influence

But should I choose an attorney off the internet?

mlinde@lindelaw.com (blog Author)37617 — Thu, 19 Aug 2010 08:00:00 EST

Recently I (Matthew Linde, Esq.) was speaking with a potential client about estate planning. I always ask people I am privileged to speak with how they found me. This person said “I found you on the internet, but that is not a good way to find an attorney.” This surprised me and I asked her how should you find an attorney? She really did not have an answer. This got me thinking, how should you choose and attorney?

No one can do everything. What should you look for when choosing an attorney? First, just because someone is an attorney, that doesn’t mean they can help you. For example, attorneys who practice many different areas (i.e., personal injury, business, estate planning, and immigration law) cannot be very knowledgeable in any one area. Personal injury has nothing to do with estate planning and when you see this type of breadth, there is a good possibility that the attorney is trying to be all things to all people. A jack of all trades and a master of none is not who you want to solve your legal problems. I concentrate my practice on a few areas that are all interrelated.

Just because the attorney has been doing that a long time does not mean that the attorney has been doing it right. Just because any attorney concentrates his or her practice in a few areas that does not mean that the attorney is technically competent. Years of experience can be one way to judge technical competence, but doing something incorrectly for many years in unlikely to solve your problem. For you the consumer, how do you tell if someone is technically competent? One way to tell is what steps has that attorney taken to demonstrate he or she is technically competent? For example, in 2010 I (Matthew Linde, Esq.) passed the 2010 Florida Elder Law Board Certification Exam and the 2010 Florida Wills, Trusts and Estates Board Certification Exam (this is a very difficult exam and many fail it) in the same year. Out of over 87,000 attorneys in the state of Florida, there are only a couple of attorneys that ever passed both of these exams in one year.

Law is complicated; if you feel compelled to ask how long your potential attorney has been working then . . . Of course, just because an attorney has been practicing only a few years that does not mean that he or she cannot assist you in solving your problem. If you have a simple task (i.e., evicting a tenant who did not pay rent) then why pay a higher hourly fee when a less experienced attorney with a lower hourly rate can solve your problem? However, if you have a complicated estate dispute with estate tax implications, then you need someone with significant experience. I started practicing law over 17 years ago.

Great, but do you currently have time to handle my problem? Ding! Ding! Ding! Ding! This is the question that you should always ask a competent, experienced professional who concentrates his or her practice in the area that you need legal assistance in. Many lawyers can be blessed (sometimes it seems like cursed) by his or her own success. Just because a lawyer is qualified, that does not mean the lawyer has the time to help you. All experience professionals at one time or another are too busy to help you. Thus, always ask the professional if they have time to help you now.

In summary, what is important is not how you meet the lawyer, but what factors you should consider when deciding whether a lawyer is qualified to help solve your problem. Please note that the factors listed above is not an all inclusive list. Contact Matthew A. Linde, P.A. today for more information.

What does it mean that the person executing the will lacked capacity?

mlinde@lindelaw.com (blog Author)37278 — Sat, 14 Aug 2010 08:00:00 EST

A will may be invalidated if the person executing the will (called the testator (male) or the testitrix (female)) lacked the capacity to execute the will. Generally the person executing the will has "sound mind" when he or she has 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.

In a will contest for lack of capacity it is important to know that the burden to prove that someone lacked capacity is on the person wanting to invalidate the will. The law presumes that the person executing the will had capacity. The standard that has to be met is that the person challenging the will has to demonstrate that it is more likely than not that the person who executed the will lacked capacity. It is also important to note that even if someone lacks capacity, that person can still execute a will if the person has a "lucid moment." In practice it is difficult to prove someone lacked capacity unless the person is quite incapacitated. What happens in a trial is the each side will hire an expert. Most of the time the proponent of a will can find an expert that will testify that it is not clear that the decedent lacked capacity. When you hear that type of testimony you have a problem because the person attempting to invalidate the will has the burden of proof on the issue. However, it is also true that someone who appears to have capacity can actually lack capacity because sometimes only someone skilled in this area of law understand the issue. Thus, if your relative executed a will under suspicious circumstances then contact Matthew A. Linde, P.A. for more information.

Matthew A. Linde passes 2010 Wills and Trusts Board Certification Exam

blog@www.floridaprobatelitigator.com (news Author)16597 — Wed, 28 Jul 2010 08:00:00 EST

In October of 2009 Mr. Linde filed an application to become a Board Certified Wills, Trusts and Estates Attorney. The Board of Legal Specialization & Education of the Florida Bar administers the certification program. No new applicant can be board certified in Wills, Trusts and Estates unless the applicant passes the board certification exam. Matthew A. Linde has passed the 2010 Wills, Trusts and Estates Board Certification Exam. However, Mr. Linde is not a board certified Wills, Trusts and Estates attorney unless and until he meets all requirements for certification and is actually certified by the Florida Bar Board of Legal Specialization & Education. To be board certified an attorney must meet the following requirements:

(1) A minimum of 5 years substantially engaged in the practice of law; (2) A satisfactory showing of substantial involvement in the particular area for which certification is sought during 3 of the last 5 years preceding the application for certification; (3) A satisfactory showing of such continuing legal education in a particular field of law for which certification is sought; (4) Passing an examination applied uniformly to all applicants to demonstrate sufficient knowledge, skills, and proficiency in the area for which certification is sought and in the various areas relating to such field; (5) Peer review shall be used to solicit information to assess competence in the specialty field, and professionalism and ethics in the practice of law. To qualify for board certification, an applicant must be recognized as having achieved a level of competence indicating special knowledge, skills, and proficiency in handling the usual matters in the specialty field. The applicant shall also be evaluated as to character, ethics, and reputation for professionalism. An applicant otherwise qualified may be denied certification on the basis of peer review.

Mr. Linde believes that a professional must never be satisfied with his or her performance. Thus, Mr. Linde continues to take steps to increase his knowledge and skill.

Is congress creating an incentive for death?

blog@www.floridaprobatelitigator.com (news Author)16103 — Sat, 10 Jul 2010 08:00:00 EST

For individuals who die in 2010, the estate tax rate is zero (0). However, under the current law, if an individual dies in 2011 (or one minute after midnight on January 1, 2011) the tax rate increases to 55% with an exemption of $1,000,000.00. The failure of congress to act creates great uncertainty for individuals with estates that exceed $1,000,000.00 or couples with estates that exceed $2,000,000.00. See the following link for an interesting article from the Wall Street Journal.

It is becoming increasingly likely that Congress will not act before the end of the year. Thus, in 2011, the estate tax becomes roaring back with a vengeance. Most estate planners (I would have to include myself) were convinced that even our dysfunctional Congress would not let this happen. However, it is prudent at this point to plan for the worst and hope for the best. Individuals and families with estates that would have been sheltered under the old law should have their estate planning reviewed especially if the individual or family will owe estate taxes if the current law scheduled to take effect in 2011 is not changed.

Do I need a trust?

mlinde@lindelaw.com (blog Author)34586 — Sat, 03 Jul 2010 08:00:00 EST

I am often asked whether an individual or couple needs a trust. Most people are not sure what a trust is, but they have heard that a trust may help them “avoid probate.” Before deciding whether you (individual or couple) need a trust it is helpful to know what a trust is. Basically, a trust is a legally enforceable agreement between the settlor (person or persons creating the trust), the trustee (the person(s) or entity that has certain duties) and the beneficiaries. The duties the trustee has to manage the trust property and the duties the trustee has toward the settlor and the beneficiaries are defined in the trust agreement and by state (Florida) law.

A trust can provide many benefits for the settlor and the beneficiaries. For example, a trust is not supervised by a court and generally provides more privacy for a settlor because there are no public records where some outside person will be able to determine who the beneficiaries are. A trust provides for centralized management of assets. Properly funded, a trust can avoid the probate process and may be a less expensive way to transfer assets. A trust is an excellent vehicle to plan for various contingencies such as if a primary beneficiary dies or become disabled. A trust can be used to minimize estate taxes or minimize income taxes among several beneficiaries. I usually set up one joint trust between a husband and wife so a husband and wife do not have to actually split assets when setting up an estate plan. Generally the larger the estate, the more likely the settlor(s) will benefit from a trust.

However, a trust is not for everyone. For example many times individuals with a modest or small estate consisting primarily of their homestead property do not need a trust. When a settlor dies there are still duties for the trustee to perform, and trust administration can be a complicated a probating a large estate. I know several one attorney in town to tries to convince every individual to set up a complicated dynasty trust no matter what the size of the individual's estate. If you do not understand that a 50 page trust says or why you need it, then you should never set one up. Contact attorney Matthew Linde today for more information.

Matthew A. Linde passes 2010 Elder Law Board Certification Exam.

blog@www.floridaprobatelitigator.com (news Author)16097 — Tue, 01 Jun 2010 08:00:00 EST

In August of 2009 Mr. Linde filed an application to become a Board Certified Elder Law Attorney. The Board of Legal Specialization & Education of the Florida Bar administers the certification program. No new applicant can be board certified in Elder Law unless the applicant passes the board certification exam. Matthew A. Linde has passed the 2010 Elder Law Board Certification Exam. However, Mr. Linde is not a board certified elder law attorney unless and until he meets all requirements for certification and is actually certified by the Florida Bar Board of Legal Specialization & Education. To be board certified an attorney must meet the following requirements:

(1) A minimum of 5 years substantially engaged in the practice of law; (2) A satisfactory showing of substantial involvement in the particular area for which certification is sought during 3 of the last 5 years preceding the application for certification; (3) A satisfactory showing of such continuing legal education in a particular field of law for which certification is sought; (4) Passing an examination applied uniformly to all applicants to demonstrate sufficient knowledge, skills, and proficiency in the area for which certification is sought and in the various areas relating to such field; (5) Peer review shall be used to solicit information to assess competence in the specialty field, and professionalism and ethics in the practice of law. To qualify for board certification, an applicant must be recognized as having achieved a level of competence indicating special knowledge, skills, and proficiency in handling the usual matters in the specialty field. The applicant shall also be evaluated as to character, ethics, and reputation for professionalism. An applicant otherwise qualified may be denied certification on the basis of peer review.

Mr. Linde believes that a professional must never be satisfied with his or her performance. Thus, Mr. Linde continues to take steps to increase his knowledge and skill.

A Will can be rescinded if testator executed it based on irrational belief

mlinde@lindelaw.com (blog Author)32309 — Wed, 26 May 2010 08:00:00 EST

I have often run in the cases where an elderly person changes a will or trust because of a belief the elderly person expressed to third parties that turned out to be false. An all too common situation is that Child 1 is taking care of Parent and stealing Parent’s money. Child 1 tells Parent that Child 2 (who is innocent) is after Parent’s money and is stealing it. Parent then goes to attorney and tells attorney to cut Child 2 out of the will. Parent then dies and Child 2 finds out that she has been cut out of the will. In this scenario Child 2 can always sue to set aside the will after Parent’s death by claiming the will was the product of undue influence. But sometimes undue influence is not a strong case. For example, if Child 1 did not procure the will that cut out Child 2, then undue influence can be hard to prove.

However, there are other options to have the will revoked. Child 2 could seek to set aside the will because Parent was suffering from and “insane delusion” when Parent requested that attorney change the will. To establish and insane delusion, Child 2 would have to prove that: (1) the will would not have been executed but for the delusion, (2) the delusion is defined as a belief of a fact which has no basis in fact, and (3) the belief (leading to the change of the will) is persistently adhered to despite all evidence and reason. What is interesting about the concept of insane delusion is that it originates from some very old cases, but is still followed by the Florida courts. If you suspect this is happening to your loved one or someone you know, contact Matthew A. Linde, P.A. for more information.

Matthew A. Linde P.A. creates floridaprobatelitigator.com

blog@www.floridaprobatelitigator.com (news Author)15051 — Thu, 20 May 2010 08:00:00 EST

Matthew A. Linde, P.A. is pleased to announce the creation of floridaprobatelitigator.com. While most law firm web sites are all about the attorneys, floridaprobatelitigator.com is all about the problems that consumers face concerning probate and trust litigation, probate and trust administration, estate planning, guardianship administration, durable power of attorney litigation and Medicaid qualification and related asset protection planning. Many times consumers are not sure what questions to ask about a legal problem the consumer is facing. Floridaprobatelitigator.com is designed to provide the consumer with background information necessary so the consumer can ask intelligent questions. This allows you the consumer to make for fully informed decisions. Check out floridaprobatelitigator.com today!

Formal Notice in Probate Requires Informed Response

mlinde@lindelaw.com (blog Author)31876 — Wed, 19 May 2010 08:00:00 EST

Probate proceedings are “in rem” proceedings. What this basically means is that the probate court has jurisdiction over the property subject to the probate proceeding. Further, the probate court has jurisdiction over YOUR property interest in the probate proceeding regardless of whether the probate court has personal jurisdiction over you. In Florida, many probate proceedings require that the personal representative or other interested party serve you with certified mail, return receipt requested. This is commonly referred to as “formal notice.” If you have been served with formal notice, then generally you have twenty (20) days to respond to the formal notice. If you fail to respond then under Florida Probate Rule 5.040(a)(2), “the pleading or motion may be considered ex parte as to that person, unless the court orders otherwise.” This means that the court can sign an order adversely affecting your interest in probate property. I have seen individuals lose hundreds of thousands of dollars by failing to take action. Thus, if you do not understand what to do, contact Linde Law Group for more information.

Common Signs of Undue Influence

mlinde@lindelaw.com (blog Author)31730 — Mon, 17 May 2010 08:00:00 EST

Florida courts have held that the following behaviors may demonstrate undue influence. If you suspect that your relative’s will, trust, deed et cetera was changed improperly, do any of these look familiar?

1. Confidential (i.e. private) relationship between the testator and the person allegedly exerting undue influence. In re Estate of Carpenter, 253 So. 2d 697, 701 (Fla. 1971);

2. Fiduciary Relationship between the testator and the person allegedly exerting undue influence. Jordan v. Growney, 416 So. 2d 24, 25 (Fla. 4th DCA 1982);

3. Presence of the person allegedly exerting undue influence at the execution of the will or trust. Carpenter, 253 So. 2d at 702;

4. Presence of the person allegedly exerting undue influence on those occasions when testator expressed a desire to make the will or trust. Id.;

5. Recommendation by the person allegedly exerting undue influence of counsel to draft will and relationship between counsel and the person allegedly exerting undue influence. Id.; Herman v. Kogan, 487 So.2d 48, 49 (Fla. 3d DCA 1986);

6. Knowledge of the contents of the will or trust by the person allegedly exerting undue influence prior to execution. Carpenter, 253 So. 2d at 702;

7. Giving instructions on preparation of will by the person allegedly exerting undue influence to the attorney drawing the will. Id.;

8. Payment of will or trust preparer by the person allegedly exerting undue influence. Id.;

9. Securing witnesses to the will by the person allegedly exerting undue influence. Id.;

10. Safekeeping of the will by the person allegedly exerting undue influence subsequent to the execution. Id.;

11. Execution of will or trust is kept secret from will contestants by the person allegedly exerting undue influence. In re Estate of Burton, 45 So. 2d 873, 875 (Fla. 1950);

12. Age of the testator or settlor. Id.;

13. Opportunity for the exercise of undue influence. Id.;

14. Weak mental and physical health of testator or settlor. In re Estate of Reid, 138 So. 2d 342, 349-50 (Fla. 3d DCA 1962), overruled in part on other grounds, Carpenter, 253 So.2d at 698;

15. Beneficiary caring for testatrix during final months of testatrix's life. Elson v. Vargas, 520 So. 2d 76 [Fla. 3d DCA 1988], review denied, 528 So. 2d 1181 [Fla. 1988];

16. The person allegedly exerting undue influence meeting alone at the attorney's office and instructing the attorney to prepare the testatrix's will designating the beneficiary as the sole beneficiary and personal representative. Id.;

17. The unnatural disposition of testatrix's property. Burton, 45 So. 2d at 875;

18. The person allegedly exerting undue influence taking complete charge of testatrix's estate, thereby placing herself in a fiduciary capacity. Clark v. Grimsley, 270 So. 2d 53, 58 [Fla. 1st DCA 1972];

19. The person allegedly exerting undue influence treating the will execution process as an urgent matter. Carpenter, 253 So. 2d at 702;

20. The person allegedly exerting undue influence is the sole, not just a substantial beneficiary. In re Estate of Van Aken, 281 So. 2d 917, 918 [Fla. 2d DCA 1973];

21. The person allegedly exerting undue influence arranging the appointment with the beneficiary's attorney. Id;

22. A dramatic change from former testamentary intentions. Newman v. Smith, 77 Fla. 667, 675 82 So. 236, 248 [Fla. 1919], rehearing denied, 77 Fla. 688, 82 So. 236 [Fla. 1919]; and

23. Opportunity and motive or interest. Gardiner v. Goertner, 110 Fla. 377, 386, 149 So. 186, 190 [Fla. 1932].

Adversarial Probate Proceedings

mlinde@lindelaw.com (blog Author)31739 — Mon, 17 May 2010 08:00:00 EST

Florida Probate Rule 5.025 defines an adversary proceeding. The full rule is listed below. Many inexperienced probate litigation attorneys do not understand that a formal probate is not an adversarial proceeding. However, adversarial proceedings can exist within the formal probate proceeding. In a large probate, there could be many different adversarial proceedings between different interested parties at one time (although with a small probate there may not be any adversarial proceedings). Adversarial proceedings are generally more formal and proceed under the rules of civil procedure (different rules that generally deal with procedure in civil trials). It is critical to understand when you are in the middle of an adversarial proceeding because the burden of production and burden of proof is generally different. Here is the rule:

“(a) Specific Adversary Proceedings. --The following shall be adversary proceedings unless otherwise ordered by the court: proceedings to remove a personal representative, surcharge a personal representative, remove a guardian, surcharge a guardian, probate a lost or destroyed will or later-discovered will, determine beneficiaries, construe a will, cancel a devise, partition property for the purposes of distribution, determine pretermitted share, determine amount of elective share and contribution, and for revocation of probate of a will.
(b) Declared Adversary Proceedings. --Other proceedings may be declared adversary by service on interested persons of a separate declaration that the proceeding is adversary.
   (1) If served by the petitioner, the declaration shall be served with the petition to which it relates.
   (2) If served by the respondent, the declaration and a written response to the petition shall be served at the earlier of:
      (A) within 20 days after service of the petition, or
      (B) prior to the hearing date on the petition.
   (3) When the declaration is served by a respondent, the petitioner shall promptly serve formal notice on all other interested persons.
(c) Adversary Status by Order. --The court may determine any proceeding to be an adversary proceeding at any time.
(d) Notice and Procedure in Adversary Proceedings.
   (1) Petitioner shall serve formal notice.
   (2) After service of formal notice, the proceedings, as nearly as practicable, shall be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure shall govern, including entry of defaults.
   (3) The court on its motion or on motion of any interested person may enter orders to avoid undue delay in the main administration.
   (4) If a proceeding is already commenced when an order is entered determining the proceeding to be adversary, it shall thereafter be conducted as an adversary proceeding. The order shall require interested persons to serve written defenses, if any, within 20 days from the date of the order. It shall not be necessary to re-serve the petition except as ordered by the court.
   (5) When the proceedings are adversary, the caption of subsequent pleadings, as an extension of the probate caption, shall include the name of the first petitioner and the name of the first respondent.”