Deciding who will get your money when you die can be difficult. Some children become confidantes while others drift away. Should you reward the child that remains focused on your needs or does your love of family mean everyone receives an equal share?
Whatever your decision, you will want your Will or Trust to be upheld by the Courts. So be mindful of how you approach your estate plan. My hope is that the remainder of this article will help you and your family steer clear of certain actions that look like fraud to Florida Courts.
Roger is 84 and has hearing and vision problems. Roger’s son lives in the neighborhood and handles his checkbook, reads his mail to him, makes most of his appointments, and coordinates maintenance on his home. Roger’s daughter lives in Chicago and comes to Florida to visit for a couple of days in late October on her way to and from Fantasy Fest in Key West. She does, however, call her brother to get monthly reports on her father and to ask that he tell her father that she loves him. She finds it difficult to communicate on the phone with her father because of his hearing impairment, but she does send him letters.
Roger becomes upset with his daughter’s lack of attention and complains to his son. His son artfully feigns disagreement but subtly enforces his father’s negative feelings about his sister. His son intentionally fails to fully communicate his sister’s phone messages and letters to his father. Roger, hurt and moved to action, now asks his son to call a lawyer so he can change his Will and leave everything to his son.
Protection from Undue Influence
If Roger makes a new Will or Trust and increases his son’s share of his estate, Roger’s daughter may be able to invalidate the Will if she can show Roger’s own free agency and will power was removed by over-persuasion, duress, and the artful and fraudulent contrivances of his son. Florida law identifies the following “badges” of undue influence, which is a form of fraud:
- Presence of the beneficiary at the execution of the will;
- Presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
- Recommendation by the attorney to draw the will;
- Knowledge of the contents of the will by the beneficiary;
- Giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
- Securing of witnesses to the will by the beneficiary;
- Safekeeping of the will by the beneficiary subsequent to execution;
- Isolating the testator and disparaging family members;
- Mental inequality between the decedent and the beneficiary; and
- The reasonableness of the will or trust provisions.
Eliminating the Appearance of Undue Influence
So when it is time to change your Will or Trust, go solo! Call the Attorney’s office yourself to set the appointment. Arrange your own transportation or ask the Attorney’s office to arrange for a taxi. Don’t bring anyone else’s notes to the appointment. Don’t bring your children as an “extra set of ears,” or “to help you understand what the Attorney is saying.” Keep your own documents for safekeeping. Recognize undue influence by caregivers or others when you see it! And then enjoy knowing that your estate plan is solid.