Swiss v. Flanagan
| Decision Date | 13 October 2021 |
| Docket Number | No. 3D20-1500,3D20-1500 |
| Citation | 329 So.3d 199 |
| Parties | Diane SWISS, Appellant, v. Alexis FLANAGAN, Appellee. |
| Court | Florida District Court of Appeals |
Saltiel Law Group, and Matthew Carcano, Miami, and Moises A. Saltiel, Coral Gables, for appellant.
Hershoff, Lupino, & Yagel LLP, and Robert C. Stober, Tavernier, for appellee.
Before SCALES, HENDON, and MILLER, JJ.
Appellant, Diane Swiss, challenges a final judgment invalidating the last will and testament executed by the testator, William D. Hadash, approximately a year and half before his death. The trial court found the will was tainted by undue influence. On appeal, Swiss contends the findings below are factually and legally unsupported. Relying upon the seminal Florida Supreme Court decision of In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), and its progeny, we affirm the well-reasoned order under review.
The testator, a successful businessman during his youth, died at the age of seventy-seven. He was survived by his three adult children and Swiss, his long-time companion. After his death, Swiss filed a petition for formal administration of the disputed will, which bore an execution date of June 12, 2013. By the terms, Swiss was to receive virtually the entire estate, which consisted nearly exclusively of real estate holdings. In all previously drafted estate planning documents, the testator had provided for each of his three children, along with Swiss. And, in the years preceding his death, he had expressed an intent to reduce Swiss's inheritance.
Appellee, Alexis Flanagan, the testator's youngest daughter, filed a caveat to the petition asserting undue influence, along with a counter-petition for administration. In her counterpetition, she sought to probate a document entitled "Last Will and Testament," dated September 18, 2001. After the pleadings closed, the action proceeded to trial. The parties presented conflicting evidence, and most credibility conflicts were resolved by the trial court against Swiss.
The record reflects that over the years, the testator met with four separate attorneys regarding his estate plans. The first such meeting occurred in 2001, when he executed the "Last Will and Testament" under the supervision of his long-standing estate attorney. Under the terms of that particular will, he devised an out-of-state condominium to Swiss and a Florida property to the children. He also granted Swiss and Flanagan dual power of attorney by means of a separate document.
After learning of the specifics of the power of attorney, Swiss contacted the testator's estate attorney. She informed him the testator had lied to her, and she had concerns regarding serving as a co-agent with Flanagan. She described their relationship as acrimonious and indicated the testator would revise the terms of the will.
In 2007, the testator returned to his estate lawyer to request a will revision. At his direction, the attorney prepared a draft reflecting a $500,000.00 bequest to Swiss, if she survived him, and dividing the remaining assets among the children. Flanagan was named as executor, and Swiss would play no formal role in the administration. The will was never executed.
Two years later, the testator again returned to his estate attorney, this time for the purpose of directing the preparation of a will reducing Swiss's share to a life estate in the out-of-state property and $100,000.00 bequest. The remaining estate was to be divided equally among the children. The testator's son was named executor, while his daughters were appointed as co-trustees. Once again, Swiss would be uninvolved in the administration. Like the prior version, the will was left unexecuted.
Approximately three years later, accompanied by Swiss, the testator again met with his estate attorney for the purpose of revising his will. The testator appeared to be in deteriorating health. After discovering the testator inexplicably intended to disinherit his children and devise his entire estate to Swiss, the attorney deviated from his standard practice and requested two competency evaluations. The testator later provided the attorney with a report confirming he was able to render health and welfare decisions. The report, however, was silent as to his capabilities relating to financial transactions. The attorney refused to draft the requested document, instead referring him to a second attorney.
The testator then met with the referral attorney and requested the preparation of further document drafts. The documents were provided, and Swiss faxed a copy, along with proposed edits, to yet a third attorney. The testator purportedly destroyed the drafts, and no further action was taken until the following year.
In 2012, the testator selected a fourth attorney from a list of names
supplied by Swiss. An initial meeting was had, but, shortly thereafter, the testator fell and fractured his hip. This precipitated surgery, followed by a lengthy convalescence in a post-surgical rehabilitation facility. While in recovery, the testator was uncooperative, belligerent, and exhibited signs and symptoms associated with an altered mental status. Nonetheless, the fourth attorney conducted a second meeting at the rehabilitation facility.
Correspondence from that time reflects the testator was not properly monitoring his finances and could not adequately care for himself. Swiss completed insurance forms and other documents on his behalf, while, at times, representing she was his wife, and managed his affairs. She also discussed the nature of his assets with others and curtailed communication with his children.
Within days of his release from the rehabilitation facility, the testator again met with the fourth attorney, this time at Swiss's home, for the purpose of completing revised estate documents. By that time, he was nonambulatory and incontinent.
Under the terms of the revised will, Swiss was to be the sole beneficiary of all assets, save a $5,000.00 bequest to the testator's eldest daughter. She was further named personal representative and granted authority to render end-of-life decisions. Two witnesses were secured by the attorney. Despite Florida residency, the will reflected the testator lived out-of-state. This subjected the estate unnecessarily to a steep inheritance tax. A contemporaneously executed affidavit contained multiple discrepancies, including denominating the testator a widower rather than a divorcé and mischaracterizing his eldest daughter as his youngest.
The week after the will was executed, the testator was diagnosed with dementia
, anxiety, and depression. A subsequent fall resulted in further medical complications, and a routine scan revealed a history of cerebral infarctions. Later acquired medical records were replete with observations regarding his impaired cognitive abilities. The testator's health continued to degenerate, and he did not execute any further estate documents before his death.
At the conclusion of the evidentiary presentation, the lower tribunal concluded the 2013 will was the product of undue influence. The court admitted the 2001 "Last Will and Testament" to probate, and the instant appeal ensued.
"We review de novo the legal question related to section 733.107(2), and we review the trial court's factual findings for competent substantial evidence." Hannibal v. Navarro, 317 So. 3d 1179, 1181 (Fla. 3d DCA 2021) ; see In re Est. of Murphy, 184 So. 3d 1221, 1227 (Fla. 2d DCA 2016) (); Estate of Madrigal v. Madrigal, 22 So. 3d 828, 829 (Fla. 3d DCA 2009) (). In this vein, "our scope of review requires us to accept the factual findings of the trial court so long as there is support for them by competent substantial evidence." Estate of Brock v. Brock, 692 So. 2d 907, 913 (Fla. 1st DCA 1996).
Under Florida law, "[a] will is void if the execution is procured by ... undue influence." § 732.5165, Fla. Stat. (2021). The burden of establishing undue influence lies with the party seeking to invalidate the will. See § 733.107, Fla. Stat. As this court has previously explained, to constitute undue influence, "the influence must amount to over persuasion, duress, force, coercion, or artful or...
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