Nelson's Estate, In re
| Decision Date | 24 February 1970 |
| Docket Number | No. L-477,L-477 |
| Citation | 232 So.2d 222 |
| Parties | In re ESTATE of William NELSON, Deceased. |
| Court | Florida District Court of Appeals |
Gregory, Towles & Beatty, and E. D. Cossaboom, Jr., Quincy, for appellants.
Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, and Richard J. Gardner, Quincy, for appellees.
Appellants seek review of a final order rendered by the County Judge of Gadsden County sitting in probate which denied their petitions to revoke the last will and testament of the decedent, William Nelson.
By his last will the decedent bequeathed the major portion of his substantial estate to appellees in trust with unlimited discretion to distribute the income or corpus thereof for such religious, educational, scientific, charitable, or literary purposes as they shall see fit. Appellees were also named as executors of the will, without bond, which was prepared and drafted by them and kept in their exclusive possession from the date of its execution until the time of decedent's death. Appellants contend that because of the compensation which appellees will receive both as executors of the will and trustees of the residuary estate, and the fees which they are in position to allow to the law firm of which they are partners for legal services to be rendered them in their official capacities, coupled with their unlimited discretion to determine the length of time the trust shall continue in existence and the purposes for which its assets shall be utilized constitute appellees as beneficiaries of the will. Appellants contend that because of the foregoing facts a fiduciary relationship existed between appellees and the decedent which, because of their beneficial interest in the will, gave rise to the presumption of undue influence. 1 Appellants contend the trial court erred in holding that under the circumstances of this case appellees were not for all intents and purposes beneficiaries of the will on whom rested the burden of rebutting the presumption of undue influence upon the decedent in the preparation and execution of his will.
In Zinnser v. Gregory 2 the Supreme Court of Florida held that if an attorney is named as executor in a will drafted by him for his client, but is not named as a legatee or devisee, he does not have such a beneficial interest in the estate merely because of the anticipated compensation he will receive as to give rise to the presumption of undue influence on his part. Appellants recognize the foregoing rule, but contend that in the case sub judice the appellees' involvement in the decedent's estate is much more extensive than was that of the attorneys involved in the Zinnser case. Here the attorneys not only prepared, drafted, and attended to the execution of decedent's will as his attorneys, but retained the will in their exclusive possession until decedent's death. They named themselves both executors of the will and trustees of the estate, with an additional member of their firm as successor trustee. The residuary trust estate consists of the greatest portion of the decedent's total estate from the income of which appellees are entitled to compensation for services to be rendered in their official capacities. In addition they have the sole authority, subject to court approval, 3 for fixing the fees to be allowed the law firm of which they are members for legal services to be rendered throughout the administration of both the estate and the testamentary trust. Of equal importance is the uncontrolled discretion of appellees as trustees to decide for which religious, charitable, literary, educational, or scientific purpose the assets of the trust estate shall be expended, and the amount to be allocated for each such purpose. It is our view that under the peculiar provisions of the will here considered appellees are in truth and in fact beneficiaries of the estate even though they are not named in the will as legatees or devisees. One would be indeed naive to indulge a contrary presumption. We hasten to add that there is no hint nor intimation in the evidence that appellees intend to or will ever...
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