Estate of Kester v. Rocco

• Decision Date: 12 August 2013
• Docket Number: No. 1D12–2006.,1D12–2006.
• Citation: 117 So.3d 1196
• Parties: The ESTATE OF Barbara KESTER/Glenna Kester, Appellant, v. Pamela ROCCO and Cynthia Collins, Appellee.
• Court: Florida District Court of Appeals

117 So.3d 1196

The ESTATE OF Barbara KESTER/Glenna Kester, Appellant,

v.Pamela ROCCO and Cynthia Collins, Appellee.

No. 1D12–2006.

District Court of Appeal of Florida, First District.

June 24, 2013.

Rehearing Denied Aug. 12, 2013.

Jennifer S. Haley–Gleason of Allen, Kopet & Assoc., PLLC, Tallahassee, for Appellant.

Diane D. Tremor and Kyle L. Kemper of Rose, Sundstrom & Bentley, Tallahassee, for Appellee.

CLARK, J.

Appellant Glenna Kester, personal representative of the estate of Barbara Kester, appeals the trial court's revised order, entered May 31, 2012, finding that she exercised undue influence over the testator,breached her fiduciary duties to the estate, and took possession of three financial assets after her mother's death as a constructive trustee rather than as a beneficiary. The order is reversed because the evidence was insufficient to support a finding of undue influence and there was no showing that Appellant breached her fiduciary duties.

Barbara Jane Kester died testate on January 21, 2011. In addition to her will, executed in 2004, Mrs. Kester had executed two codicils to her will, each in December, 2010. The codicils specifically named her children: Glenna Kester (Glenna), Pamela Rocco (Pamela), Cynthia Collins (Cynthia), Monte Kester (Monte), and David Kester (David) as beneficiaries of the estate and designated Glenna and David as personal representatives.¹ Mrs. Kester had given Glenna her durable power of attorney several years previously, but there was competent substantial evidence that Mrs. Kester retained her mental faculties and ability to understand and manage her own finances until the time of her death.

Shortly after Mrs. Kester's death, Glenna took possession of two financial accounts (the “Farmer & Merchants CD” and the “First Florida Credit Union account”) as either a Payable on Death beneficiary or a joint account holder with right of survivorship. Glenna also took possession of a third account (the “AIG annuity”), on which her mother had listed Glenna, Monte and David as beneficiaries. For this annuity, Glenna testified that she had distributed her brothers' one-third shares to them and kept her share. Monte and David did not deny receiving this distribution from Glenna in their testimony at the hearing. Because of the beneficiary designations on these three assets, Glenna did not list them as estate assets in the probate action and Pamela and Cynthia, the other two daughters of Mrs. Kester, did not receive any distributions from these assets.

Mrs. Kester's will and codicils were admitted to probate and the validity of these legally executed documents was never challenged. However, Pamela and Cynthia challenged the inventory of estate assets Glenna filed with the court in the probate proceedings. They petitioned the court to compel Glenna to return the value of the three financial accounts at issue to the estate for distribution. The petitioners argued that because Mrs. Kester's will clearly stated that her estate would be equally distributed among the five heirs, the resulting uneven division whereby they received far less from their mother's estate than Glenna and their brothers proved that Glenna had exercised undue influence upon Mrs. Kester regarding the financial accounts. Pamela and Cynthia further charged that Glenna thwarted their mother's wishes and misappropriated these assets for her own benefit, in breach of her fiduciary duty to the estate and beneficiaries.

After hearing the petition to compel production of the assets, the trial court agreed with Pamela and Cynthia and found that Glenna's authority to take possession of the accounts from the financial institutions was procured by undue influence over her mother “especially during the time between Mr. Kester's death in May 2010 and Mrs. Kester's own death in January 2011.” The court further found that because of her undue influence over Mrs. Kester's designations on these accounts, Glenna was deemed to have taken possession of the accounts “as a constructive trustee.” Finally, because Glenna had not followed the notes she and her mother made about Mrs. Kester's property, the court found that Glenna had breached her fiduciary duty, created by both her durable power of attorney and appointment as personal representative, to carry out her mother's wishes. The court ordered Glenna (but not her brothers) to return the proceeds from the accounts at issue to the estate and pay damages to Pamela and Cynthia from Glenna's share of the estate for the litigation and other expenses incurred in correcting Glenna's wrongdoing in connection with the probate of the estate. In addition to requiring Glenna to provide additional accounting and inventory statements, the trial court revoked the letters of administration appointing Glenna and David the personal representatives and substituted Pamela as the interim personal representative.

The key evidence relied upon by the petitioners, and the trial court, to support the finding of Glenna's undue influence and breach of fiduciary duty to carry out Mrs. Kester's intended distribution of her assets is an unsigned, undated spreadsheet purportedly prepared for Mrs. Kester by Glenna in December of 2010. There was testimony that the spreadsheet was the result of discussions between Glenna and Mrs. Kester in December, 2010, concerning Mrs. Kester's plans for her property. Although both codicils to Mrs. Kester's will were executed in December of 2010, the spreadsheet is not referenced in the codicils. The spreadsheet listed Mrs. Kester's property, including the accounts at issue, estimated values, notes about potential distributions of each item and actions to be taken to effectuate this plan (the to-do list). The evidence indicated that in January 2011, Mrs. Kester changed the beneficiaries on the AIG Annuity to remove Pamela and Cynthia, leaving only Glenna, David and Monte, consistent with the first item on the to-do list. However, none of the other items on the list were accomplished before Mrs. Kester passed away. In addition to this document, the petitioners presented the consistent testimony of all the heirs, including Glenna, that they were aware of Mrs. Kester's intent to distribute her assets equally among her five heirs. Other witnesses described Mrs. Kester's intelligence, mental acuity and her longstanding active participation in her own financial planning, such as investing in CD's and shopping for favorable interest rates during the months prior to her death.

Undue influence must amount to “over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.” Raimi v. Furlong, 702 So.2d 1273, 1287 (Fla. 3d DCA 1997); see also Peacock v. Du Bois, 90 Fla. 162, 105 So. 321, 322 (1925) ...