Bergman v. Serns, 88-802

• Decision Date: 06 March 1990
• Docket Number: No. 88-802,88-802
• Parties: 15 Fla. L. Weekly D643 Carol BERGMAN, Appellant, v. David SERNS, Appellee.
• Court: Florida District Court of Appeals

Page 1201

560 So.2d 1201

15 Fla. L. Weekly D643

Carol BERGMAN, Appellant, v. David SERNS, Appellee.

No. 88-802.

District Court of Appeal of Florida,

Third District.

March 6, 1990.

Rehearing Denied June 6, 1990.

Ann Mason Parker, Coral Gables, Peggy Fisher, Miami, for appellant.

Anderson, Moss, Russo & Cohen, Daniels & Hicks and Patrice A. Talisman and Angela C. Flowers, Miami, for appellee.

Before SCHWARTZ, C.J., and HUBBART and COPE, JJ.

PER CURIAM.

Carol Bergman appeals a final judgment denying her petition to revoke the will of her deceased mother, Beatrice Serns Greenfield. We reverse.

Carol Bergman and David Serns are the children of the late Beatrice Serns Greenfield. In 1981, when Mrs. Greenfield was of advanced years, she was adjudicated incompetent and a guardianship was established. During the course of the guardianship proceeding, Serns alleged that Mrs. Greenfield had in 1975 transferred all of her assets to him. The validity of that inter vivos gift was attacked in the guardianship proceeding, and the trial court found that the gift was the product of undue influence by Serns, who was a member of the Bar as well as Mrs. Greenfield's son.

After an evidentiary hearing the trial court concluded that "[Mrs. Greenfield] had definite opinions concerning her children, as evidenced by a number of Wills she had executed over a period of years, [and] she had long determined to leave little or nothing to her son [Serns] at her death." The trial court found that "There is nothing in the statements [made in testimony to the court] to indicate a revocation of her long-standing testamentary intention to provide at least some stipend for her daughter at Mrs. Greenfield's death." Indeed, prior to the purported December, 1975 inter vivos gift, Mrs. Greenfield's numerous wills and codicils had routinely either excluded Serns entirely, or had left him with only a nominal devise, while making much more substantial provision for Mrs. Greenfield's daughter, Carol Bergman. The trial court concluded that "David R. Serns took advantage of the weakened mental and physical condition of his mother, caused her to interpose in him trust, confidence and reliance; ... and dealt with her on terms of inequality so as to actually procure the transfer by her of all of her assets which divested her of her entire estate under circumstances of undue influence and by virtue of which David R. Serns was unjustly enriched." The court determined that the inter vivos gift had been made in early December, 1975.

The trial court found the alleged inter vivos gift to be invalid, and directed that all sums be accounted for. ¹ In the course of the proceedings, the court also directed Serns to produce any of Mrs. Greenfield's wills that were in his possession. No wills were ever produced.

In 1986 Mrs. Greenfield died. Serns opened an estate based upon a last will and testament of Mrs. Greenfield dated December 1, 1975. This will had been drafted by Serns contemporaneously with the giving of Mrs. Greenfield's inter vivos gift. Carol Bergman petitioned for revocation of the probate of the December 1, 1975 will. The trial court denied relief. In so doing, the trial court erred. Relief should have been granted on the basis of collateral estoppel.

In the earlier guardianship adjudication, the trial court expressly found...