UNDUE INFLUENCE
Real-Life Estate Planning Nightmare: Why You Shouldn’t Wait
Having a professional prepare your estate plan—whether it’s a Will, Revocable Trust, or Irrevocable Trust—is essential. If you already have a plan in place, it's equally important to have a professional review it regularly. Laws change, and your financial and family situation may shift, so ensuring your plan is current is crucial to avoid costly problems down the road. Procrastination in this area can lead to heartbreaking and expensive outcomes for you and your family. If you’ve been putting off this important task, take action today—before a crisis hits.
Here’s a cautionary tale from one of our clients:
A son in his 50s regularly visited and supported his 80-year-old mother, who lived independently with the help of a caretaker a few days a week. Everything seemed fine. The son helped with doctor's appointments and stayed in regular contact with his mother by phone.
However, when his mother passed away, everything changed. The son, believing he was the sole beneficiary of his mother’s estate (as per a Will she signed five years earlier), was blindsided when the caretaker revealed that she had become the sole beneficiary just eight days before the mother’s death. The caretaker presented a new Will and a deed to the house, both naming her as the beneficiary. She had even secured legal counsel.
Shocked, the son came to our office, bringing copies of both the old and new documents. Upon investigation, it was confirmed that the new Will and deed had been signed in the hospital just days before the mother's death, with witnesses and a notary present. According to Florida law, the new Will would take precedence, leaving everything to the caretaker.
Faced with this unjust situation, we filed a Petition to Revoke Probate in accordance with Florida Statue 733.109. We alleged that the mother had been under duress and undue influence when she signed the new Will and that she lacked the mental capacity to make such decisions, in violation of Florida Statute 733.107. The case of In Re Estate of Carpenter, 253 So. 2d 697 was decided by the Florida Supreme Court in 1971 and explains what needs to be proved in order to set aside and vacate a will. The case was analyzed in order to obtain the facts necessary to protect our client. We launched a full legal challenge: issuing subpoenas, taking depositions from witnesses and the notary, and putting the caretaker under oath. After extensive litigation and significant legal fees, the case was resolved in the son’s favor, and he inherited his mother’s estate.
This entire ordeal could have been avoided if a Trust had been in place. There could have been a provision placed in the Trust to remove the grantor/mother's power to change the Trust under certain medical conditions. Furthermore, the Trust would have named the son as trustee and ensured that all assets were transferred to the Trust before the mother’s passing. This simple step would have made the new Will irrelevant, as none of the assets would have remained in the mother’s name. Her home, bank accounts, and investments would have been owned by the Trust, and the caretaker would have had no legal claim.
Don’t delay in getting your estate plan in order. Many people express their intention to create or update their plans but get caught up in everyday life. It’s far better to act now than wait for a crisis. Your estate plan can always be adjusted later. Contact us now.
Avoid "paralysis by analysis"—take the first step today and secure your family’s future.