Estate of Brock
| Decision Date | 07 November 1996 |
| Docket Number | No. 95-94,95-94 |
| Citation | 692 So.2d 907 |
| Parties | 21 Fla. L. Weekly D2386 ESTATE OF Conway BROCK, Deceased. Conway BROCK, Jr., Appellant, v. Newman D. BROCK, Appellee. |
| Court | Florida District Court of Appeals |
Robert W. Goldman of Robert W. Goldman, P.A., Naples, for Appellant.
James P. Judkins of Kitchen, Judkins, Simpson & High, Tallahassee, for Appellee.
ON APPELLANT'S MOTION FOR REHEARING, CLARIFICATION, CERTIFICATION, AND REHEARING EN BANC
ON APPELLEE'S MOTION FOR CORRECTION AND CLARIFICATION
After consideration of the motions filed by the respective parties, we withdraw the majority opinion issued in this cause on July 2, 1996, and substitute the following revised opinion in its place. To the extent the revised opinion does not respond to points raised in the parties' motions, those points are denied.
Appellant, Conway Brock, Jr., appeals the circuit court's order rejecting appellant's request to revoke probate of the last will and testamentary trust executed by Conway Brock (Dr. Brock), retired veterinarian, who died January 27, 1994, at the age of 82. After making some specific bequests, Dr. Brock left the residuary of his estate to his younger son and personal representative, Newman D. Brock, appellee in the distribution at issue in this proceeding. Appellant, Dr. Brock's older son, contested probate, on grounds that the testamentary disposition was the product of undue influence. The issues presented in this appeal are: (1) whether the acting circuit court judge possessed authority to adjudicate the will and trust contest; and (2) whether the judge correctly applied the law of undue influence, the burden of proof, and the standard of proof to the facts of this case. We affirm the result reached by the trial court. 1
A brief summary of the family history and a chronology of events is essential to an understanding of the facts pertinent to the undue influence issue in this case. Dr. Brock was married three times. His three children, a daughter and two sons, were born of the first marriage. Dr. Brock's daughter is not a party to this will challenge. After Dr. Brock's first marriage ended in 1949, he had very little contact with his children during the remainder of their childhood. Although he had some telephone contact with his sons during their college years, it appears he remained totally estranged from his daughter. There is evidence that his relationship with both sons improved in later years.
No children were born to Dr. Brock and his second wife, Margaret Z. Brock. Margaret Brock was and is a successful realtor and businesswoman. During their forty-year marriage, Dr. Brock and his second wife amassed substantial assets. The dissolution, in 1989, of Dr. Brock's second marriage generated vigorous litigation over the division of property acquired during the lengthy marriage.
In December 1989, Dr. Brock contacted appellee, his attorney son, and asked him to visit. The call and request for a visit occurred during the time period when Dr. Brock was involved in the divorce from his second wife. He sought appellee's advice with respect to the financial aspects of the dissolution of marriage litigation. In late 1990, Dr. Brock remarried. Appellee testified that he did not see or confer with Dr. Brock again until the first part of 1993. At that point, Dr. Brock was involved in the dissolution of his third marriage.
In April or May 1993, Dr. Brock met with attorney Charles Isler, who practices in the area of estate planning and probate. Dr. Brock explained that he had been estranged from his children for a number of years, but he had had some recent contacts with his sons. Dr. Brock wished his attorney son, Newman, to be the personal representative and trustee of his estate, and his other son, Conway, Jr., to be the alternate personal representative. The residue of Dr. Brock's estate was to be divided equally between Conway, Jr. and Newman. 2 Mr. Isler described Dr. Brock as a fairly impatient man, who insisted that Mr. Isler draft a document and have it typed while Dr. Brock waited. Mr. Isler said Dr. Brock never read documents before signing them. Due to a drafting error in the final documents prepared by Mr. Isler, the names of the personal representatives and the relationships of some of the beneficiaries had to be corrected. 3 Subsequently, Mr. Isler learned that Dr. Brock's failure to return to his office to sign the corrected documents was due to Dr. Brock's mistaken belief that there would be an additional charge for the corrections. 4
Attorney Rhonda Clyatt represented Dr. Brock in the dissolution of his second marriage. Ms. Clyatt said appellee wished to be apprised of everything concerning his father's divorce from Margaret, and he held numerous telephone conversations with Ms. Clyatt and with the attorney she associated. Ms. Clyatt also represented Dr. Brock in his divorce from his third wife. During that litigation, appellee provided Ms. Clyatt with legal research dealing with undue influence and the expedition of trials for elderly persons.
By July 1993, Dr. Brock's physical condition had worsened considerably, and in September 1993, he was quite ill. From July 1993 until Dr. Brock's death in January 1994, appellee spent considerably more time with Dr. Brock than he previously had done.
According to Ms. Clyatt, Dr. Brock discussed the disposition of his estate many times over the years, changing his mind several times. She used the estate plan devised by Mr. Isler to prepare the final will and trust documents executed by Dr. Brock. Her initial task was simply to correct the clerical errors in the will and trust documents. On August 27, 1993, the date of the final dissolution of Dr. Brock's third marriage, Ms. Clyatt met with Blondell Smith, a distant relative of Dr. Brock, and Dr. Brock, at a restaurant. During the meeting, Dr. Brock's estate plans were discussed. Ms. Clyatt's notes of that meeting indicated that at that point, Dr. Brock still intended to divide his estate between his two sons.
In a letter dated September 1, 1993, Ms. Clyatt advised Dr. Brock that a will and trust should be prepared at the earliest opportunity. 5 Ms. Clyatt described Dr. Brock as "pretty sick" during that time period. Due to his poor health, Dr. Brock was unable to keep an appointment at Ms. Clyatt's office on September 17, 1993. Ms. Clyatt and appellee met for dinner that same evening, and on the following day, Saturday, September 18, 1993, Ms. Clyatt met with Dr. Brock and appellee at Dr. Brock's farm for a discussion of the estate plan.
Dr. Brock signed the contested will and trust documents in Ms. Clyatt's office on September 20, 1993. Ms. Clyatt then mailed the originals to appellee in accordance with Dr. Brock's instruction. Appellee executed the trust and returned a copy to Ms. Clyatt. When the will contest arose, Ms. Clyatt learned that after she sent the documents to appellee, he changed the first page of the durable power of attorney. The change consisted of removing appellant's name as the alternate attorney-in-fact. 6
Between August 27, 1993, and September 18, 1993, Dr. Brock apparently decided to make appellee his primary beneficiary. Dr. Brock's paid caregivers and companions testified that Dr. Brock felt appellee cared for him, because he visited with Dr. Brock, and called to check on his wellbeing. Dr. Brock told these caregivers that his daughter and his older son had denied him as their father, and wanted nothing to do with him.
Martin Coates, Dr. Brock's accountant, described Dr. Brock as a very strong-willed person, but one who could be "very influenced" by persons who had gained his trust. The accountant explained: "He would listen to your advice and things of that nature as long as he trusted you and felt like you were not trying to get from him, I guess, some of his assets or what have you." Dr. Brock told Mr. Coates of his renewed relationship with his younger son, and spoke frequently of appellee to Mr. Coates. As to Dr. Brock's mental capacity, Mr. Coates was of the view that Dr. Brock understood his explanation of the tax consequences of a 1993 timber sale, and that Dr. Brock's mental ability was good.
George Exley, a retired forester and one of Dr. Brock's oldest friends, described him as a very confident, outspoken man. Mr. Exley felt Dr. Brock was capable of handling his own business affairs up until the last meeting Mr. Exley had with him. Mr. Exley echoed Mr. Coates's view of Dr. Brock's willingness to turn over business decisions to persons he trusted. Mr. Exley said Dr. Brock was not familiar with timber, and asked Mr. Exley to handle the timber sale for him. Mr. Exley described Dr. Brock as a very lonely man after his divorce from his second wife. At that time, he decided to contact his lawyer son for advice about his residual financial problems. According to Mr. Exley, Dr. Brock decided to leave most of his money to appellee, because he felt his older son did not care about him.
In order to implement the testamentary plan devised by Mr. Isler, appellee retained a lawyer to prepare quitclaim deeds to transfer Dr. Brock's real property to the revocable trust. During the 1993 Thanksgiving week-end, appellee went to his father's home with the deeds, then asked Mr. Coates to send someone to notarize the deeds. Appellee directed his judicial assistant to retype the first page of the durable power of attorney to remove appellant's name, and he arranged for execution of the document as modified. Appellee used the October 1993 durable power of attorney to transfer checking accounts in Dr. Brock's name to a joint survivorship account in the names of Dr. Brock and appellee. Appellee also used the general power of attorney when writing checks on the accounts. The record reflects that between October and December 1993, appellee transferred a number of bank accounts either to himself individually or to be held jointly with the decedent,...
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