Derovanesian v. Derovanesian

• Decision Date: 27 August 2003
• Docket Number: No. 3D02-929.,3D02-929.
• Parties: Mary DEROVANESIAN, Appellant, v. Jack DEROVANESIAN, et al., Appellees.
• Court: Florida District Court of Appeals

857 So.2d 240

Mary DEROVANESIAN, Appellant, v. Jack DEROVANESIAN, et al., Appellees.

No. 3D02-929.

District Court of Appeal of Florida, Third District.

August 27, 2003.

Berman & Kean and Richard E. Berman (Fort Lauderdale); Bunnell, Woulfe, Kirshbaum, Keller, McIntyre & Gregoire and Nancy Gregoire (Fort Lauderdale), for appellant.

Todd Derovanesian, Jr.; Martin Derovanesian, in proper persons.

Before SCHWARTZ, C.J., and LEVY and WELLS, JJ.

SCHWARTZ, Chief Judge.

Mary Derovanesian, the only daughter of Dr. Zevart Manoyian who died at 83 on December 24, 1999, appeals from a probate judgment which invalidated an amended trust and pour-over will executed by Dr. Manoyian on August 18, 1999, as the product of undue influence asserted by the appellant upon the decedent. The 1999 will and trust effected a significant change from similar instruments Dr. Manoyian executed in 1990, which had divided her 2.3 million dollar estate equally among Mary and her three brothers, by leaving the brothers only about $75,000.00 each with Mary to receive the rest of the estate. We reverse because of our determination that the record does not, as is required to set aside a properly executed will, make it "clearly [appear] that the free use and exercise of the testator's sound mind in executing [her] will was in fact prevented by deception, undue influence, or other means." In re Carpenter's Estate, 253 So.2d 697, 704 (Fla.1971). Indeed no cognizable showing to that effect was made at all.

There is no question that there was no direct evidence that Mary exercised any influence, let alone undue, upon her mother in making the disposition in her favor. To the contrary, the appellees relied below and here only upon what may be called Carpenter inferences to that effect which arise from evidence that Mary played a part in securing the attorney who drew the 1999 instruments, was present when they were executed, and (along with many others) was aware of their contents both before and after their execution. We find, however, that those inferences were more than overcome by Mary's reasonable explanation for this involvement—that she merely responded to the wishes of her mother with whom, alone among the siblings, she was living during the decedent's last illness, and—much more significantly—by uncontradicted direct evidence that the 1999 documents were the product of her own free and independent will. In more or less ascending order of importance:

1. There was uncontroverted evidence that Dr. Manoyian, a remarkable person who was one of the first female physicians in Florida, was an indomitable, fiercely independent individual, who was peculiarly unsusceptible to the influence of others, and who retained that individuality and strength of mind (and even practiced medicine) after she was diagnosed with terminal stomach cancer and up to perhaps only a few weeks before her death. Compare, In re Reid's Estate, 138 So.2d 342 (Fla. 3d DCA 1962), overruled in part on other grounds, In re Carpenter's Estate, 253 So.2d 697 (Fla.1971).

2. Direct, again unimpeached, testimony of the attorneys who drew the 1999 documents was adduced that they correctly reflected an exercise of her uninfluenced desire as to the disposition of her estate. See Langford v. McCormick, 552 So.2d 964 (Fla. 1st DCA 1989), review denied, 562 So.2d 346 (Fla.1990).¹

3. What we regard as most significant of all, there was undisputed testimony from a variety of witnesses, including two of the doctor's closest friends, Mr. and Mrs. Pilafian,² another friend who acted as her handyman, Cal Atkins, and even one of the appellees that—well before she signed the 1999 documents and, in the case of the Pilafians, well before Mary had anything to do with the matter—the decedent had not only expressed her desire to do what the instruments did, favor Mary over her three brothers, but that she had very good reasons for doing so: Mary needed the money and her sons, each of them an independently wealthy professional man, did not. As Mr. Pilafian said:

Q. Did you ever talk to Dr. Manoyian after 1997 about what she intended to do with her estate?

A. It would come up about every time we would meet. I represented her in real estate ventures and she would also mention that she wanted to make up an estate. The primary reason was I want to make sure that my daughter Mary is well taken care of.

Q. Did she tell you about whether she wanted to leave any money to her boys versus whether she wanted to leave any money to Mary?

A. At one time when she told me, she says, I don't care about taxes. She says, let everybody pay their own taxes. They're all millionaires in their own rights.

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The face of this evidence leaves us in no doubt that the disposition complained of was, in legal contemplation, not the result of anything but the decedent's own wishes.

Of the numerous Florida cases which might be cited in support of this conclusion, Langford, 552 So.2d at 964, is among the most persuasive. Reversing a trial court's finding of undue influence, the court said:

One asserting that a testamentary disposition was the product of undue influence bears a heavy burden. The "undue influence must amount to over persuasion, duress, force, coercion or artful or fraudulent contrivances to such a degree that there is a destruction of free agency and willpower." [Emphasis added.] Jordan v. Noll, 423 So.2d 368, 370 (Fla. 1st DCA 1982), citing Williamson v. Kirby, 379 So.2d 693. Hence, the crucial issue is whether the record before us contains evidence legally sufficient to support a finding that Anava McCormick's "free agency and willpower" were destroyed by the actions of appellant and other members of the Langford family at the time she made the September will.

Even though Anava's brothers or niece may have "planted the seed" for her change in disposition of her estate from that set forth in the March will, proof of that fact alone does not satisfy the burden of proof. The evidence must also show that, having so planted the seed, the brothers and niece exercised sufficient influence over her mind that Anava was deprived of her own free will when making the will. Several undisputed facts in the record establish that Anava was not so influenced when she met her Alabama attorney, Mark Murphy, and told him what to put in her will.

Apparently, the trial judge gave scant consideration and probative value to the uncontradicted testimony of attorney Murphy, although the findings in the final judgment indicate the judge accepted the credibility of this witness. Yet, Murphy's testimony provided the most important objective evidence probative of Anava's testamentary capacity and ability to exercise her will free of outside influence at the time she made the September will. In lengthy discussion with her prior to preparing the will, he found her to be mentally astute and alert even though physically weak and infirm. She manifested a clear grasp of what she wanted to do and gave a thoughtful explanation as to why she wanted to make the property disposition she made. She made specific devises to her husband of all property acquired during the marriage and owned by them jointly. Further, she explained that she wanted her brother Robert rather than Murray to serve as executor. [e.s.]

* * *

Paraphrasing the holding in Tarsagian v. Watt, 402 So.2d at 472, this court is not free to treat lightly the decedent's manifested testamentary intent, whether she leaves her estate entirely to her husband, or divides it among her husband and her blood family; merely because her choice happens to bestow a substantial portion of her estate on her brothers and their family members rather than on her husband, whom she undoubtedly loved dearly, does not mean that her choice was not freely made, and unless the evidence shows that she has been precluded from freely exercising that choice, her wishes are to be respected. The evidence in the case before us falls substantially short of clearly indicating that Anava McCormick's "free agency and willpower" were destroyed by undue influence exerted by appellant and other Langford family members, and we are unwilling to thwart the dispositional intent she so clearly evidenced to her attorney and in her will.

Langford, 552 So.2d at 968-969. See In re Estate of Flohl, 764 So.2d 802 (Fla. 2d DCA 2000); Pavlides v. Roussis, 764 So.2d 769 (Fla. 2d DCA 2000); Raimi v. Furlong, 702 So.2d 1273 (Fla. 3d DCA 1997),review denied, 717 So.2d 531 (Fla.1998); Mulato v. Mulato, 705 So.2d 57 (Fla. 4th DCA 1997),review denied, 717 So.2d 535 (Fla.1998); Ballard v. Ballard, 549 So.2d 1176 (Fla. 2d DCA 1989); Jordan v. Noll, 423 So.2d 368 (Fla. 1st DCA 1982),pet. for review denied, 430 So.2d 451 (Fla.1983); Tarsagian v. Watt, 402 So.2d 471 (Fla. 3d DCA 1981); Williamson v. Kirby, 379 So.2d 693 (Fla. 2d DCA 1980); see also, Kendrick-Owens v. Clanton, 271 Ga. 731, 732-733, 524 S.E.2d 237, 238 (1999)³; In re Estate of Farr, 49 P.3d 415, 430 (Kan. 2002)⁴; In re Raynolds' Estate, 132 N.J.Eq. 141, 153-154, 27 A.2d 226, 233-234 (1942), aff'd, 133 N.J.Eq. 344, 32 A.2d 353 (1943)⁵; Estate of Davis, 920 S.W.2d 463, 467 (Tex.App.1996).⁶ Very telling also are cases from other jurisdictions which involve very similar facts. Thus, in In re Succession of Deshotels, 735 So.2d 826, 832 (La.App. 3 Cir.1999), the court affirmed a summary judgment that no undue influence existed because, in part,

The record established that Mrs. Deshotels lived alone but with the help of sitters at the time of her will, with Loretta and Ms. Ayo visiting every other weekend. The only evidence suggesting that Mrs. Deshotels was influenced by Loretta or Ms. Ayo was found in the deposition of Bertie Guillory, who had stopped working for Mrs. Deshotels approximately five months before the will was executed.

Although Ms. Ayo was present at the meeting about the will, Mr. Fuselier testified that she did not participate in discussing it and that the substance

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