Elson v. Vargas

• Decision Date: 09 February 1988
• Docket Number: No. 87-184,87-184
• Parties: 13 Fla. L. Weekly 378 Dorothy ELSON, Appellant, v. Amanda VARGAS, as Personal Representative of the Estate of Paula Oliver, deceased, Appellee.
• Court: Florida District Court of Appeals

Page 76

520 So.2d 76

13 Fla. L. Weekly 378

Dorothy ELSON, Appellant, v. Amanda VARGAS, as Personal Representative of the Estate of Paula Oliver, deceased, Appellee.

No. 87-184.

District Court of Appeal of Florida Third District.

Feb. 9, 1988.

Rehearing Denied March 8, 1988.

Murphy & Parente and Joseph H. Murphy, Coral Gables, for appellant.

G. Frank Quesada and Renato Perez, Coral Gables, James C. Blecke, Miami, and Susan S. Lerner, for appellee.

Before SCHWARTZ, C.J., and HENDRY and NESBITT, JJ.

PER CURIAM.

Dorothy Elson, sister-in-law of the deceased, Paula Oliver, appeals from an order denying her petition to revoke decedent's will. We affirm the trial court's decision.

Under the will being contested, the decedent, Paula Oliver, made Amanda Vargas her sole beneficiary. Vargas had cared for Oliver during her final months of life. Elson filed a petition to revoke Oliver's will alleging that it was invalid as a result of the undue influence which Vargas held over Oliver at the time the will was procured. After a non-jury trial, the judge upheld the will. Elson appeals.

It is well established that when a substantial beneficiary under a will (1) has a confidential relationship with the testator, and (2) is active in procuring the contested will, the presumption of undue influence arises. In re Estate of Carpenter, 253 So.2d 697, 701 (Fla.1971); Blades v. Ward, 475 So.2d 935 (Fla. 3d DCA 1985). Here, Paula Oliver, the testatrix, placed special trust and confidence in Amanda Vargas. Testimony from both sides clearly proved the existence of a confidential relationship. In addition, Vargas was instrumental in the procurement of Oliver's will and was the sole beneficiary under the will. Toward the end of 1984, Vargas went alone to an attorney's office and had him prepare a will for Oliver designating herself as both the sole beneficiary and personal representative. Vargas paid the attorney and took possession of the document. Vargas's attorney never met Oliver or discussed her will with her. At no time during the will's preparation did Oliver have independent, disinterested advice. See In re Carpenter, 253 So.2d at 702; In re Knight's Estate, 108 So.2d 629 (Fla. 1st DCA 1959). Vargas contacted three neighbors to witness Oliver's signing of the will on January 26, 1985. Within two weeks of the signing, Oliver was admitted to Coral Gables Hospital and was declared incompetent approximately three weeks after admission. Soon after, Vargas delivered the will to her attorney who later presented it at the competency hearing where Elson was appointed Oliver's guardian. These facts are clearly sufficient to establish active procurement of the will by Vargas, and, coupled with the proof of a confidential relationship, a presumption of undue influence arises.

Once sufficient evidence of undue influence was established, it became the burden of the will proponent to come forward with a reasonable explanation for her active role in the decedent's affairs to rebut the presumption of undue influence. Carpenter, 253 So.2d at 704; In re Estate of Paulk, 503 So.2d 368 (Fla. 1st DCA), review denied, 513 So.2d 1062 (Fla.1987); Blades, 475 So.2d at 938. This court, in deciding Ahlman v. Wolf, 483 So.2d 889, 892 (Fla. 3d DCA 1986), stated that "Carpenter requires only a minimal response to overcome the presumption." The final order at issue here did not address either the presumption or whether Vargas successfully rebutted the presumption; this omission, however, does not negate the trial court's findings. Ahlman, 483 So.2d at 892; In re Estate of Lightfoot, 433 So.2d 607, 609 (Fla. 4th DCA 1983), review denied, 444 So.2d 417 (Fla.1984).

As an explanation for her actions, Vargas testified that she took care of the enormous physical needs of the terminally ill testatrix, assisted her in cooking and housekeeping, and ran all her errands. There was independent testimony that Oliver hated the idea of going to a nursing home or hospital, saying she preferred to die at home. Vargas also helped Oliver with her financial matters. The president of a Miami bank where Oliver had an account verified that Oliver had authorized Vargas to do her banking for her.

Neighbors, health care workers, a doctor, and a police officer who had contact with Paula Oliver during her last months described her as a very strong-willed woman who wanted things done her way. There was testimony from a disinterested witness that Oliver controlled Vargas and not vice versa. Such testimony could refute any presumption that Oliver was overly susceptible to Vargas's influence. See In re Peter's Estate, 155 Fla. 453, 20 So.2d 487 (1945); In re Starr's Estate, 125 Fla. 536, 170 So. 620, 623 (1935). There was evidence that once the will was delivered to her, Oliver maintained it in a drawer by her bedside. This would support a finding that the document was in her physical control. See In re Sharp's Estate, 133 Fla. 802, 183 So. 470 (1938); cf. In re Algar's Estate, 383 So.2d 676 (Fla. 5th DCA), (wills are ambulatory and revocability is an essential element of a will), review denied...