Tobias' Estate, In re
| Decision Date | 04 November 1966 |
| Docket Number | No. 6033,6033 |
| Parties | In re ESTATE of Ella J. TOBIAS, Deceased. The FLORIDA HEART ASSOCIATION, INC., a Florida Corporation, Appellant, v. Nevie C. FRAZIER, Board of Public Instruction of Glades County, and the First National Bank in Fort Myers, Florida, a National Banking Corporation, Appellees. |
| Court | Florida District Court of Appeals |
Frank C. Alderman, III, of Alderman & Alderman, Fort Myers, for appellant.
F. Malcolm Cunningham, of Cunningham & Cunningham, West Palm Beach, for appellee Nevie C. Frazier.
The appellant, The Florida Heart Association, Inc., a Florida Corporation, brings this appeal against Nevie C. Frazier; Board of Public Instruction of Glades County; and The First National Bank in Fort Myers, Florida, a National Banking Corporation, seeking to set aside a final judgment denying the probate of the Will of Ella J. Tobias.
The deceased, Ella J. Tobias, died on May 28, 1964, leaving a Will dated June 28, 1957, and was survived by one daughter, Nevie C. Frazier, appellee herein. According to the testimony, the deceased and her daughter were very close and Nevie had worked hard in her mother's store for some years prior to the mother's death and had gone to the attorney's office on different occasions when her mother was giving instructions as to drafting her Will. At the deceased's death she left an estate of more than $50,000.00 and had told several persons that it was her wish that her daughter, Nevie, have her estate for her life and after that, that it be divided between the 'Heart Fund' and the local 'Negro School.' She contacted an attorney to draft a Will in accordance with her wishes and Nevie accompanied her to this attorney's office, although there is a conflict in the testimony as to the daughter's knowledge of the provisions of the Will and as to whether or not she remained in the outer office while her mother was with the attorney. First a draft of the Will was sent to the deceased by her attorney and then two days later he requested her to come back to his office to execute the final draft of the Will. At this time he had a conference with the deceased for about twenty to thirty-five minutes and the Will was executed according to the dictates of law. Mrs. Tobias then took the Will back to the grocery store, placed it in a safe, and it remained there until her death several years later.
It appears that the Will left $5,000.00 to her daughter, Nevie C. Frazier, $5,000.00 to The Florida Heart Association, Inc., and the remainder was left in trust for the Glades County Board of Public Instruction for the betterment of the Negro school in the community, naming The First National Bank in Fort Myers, Florida, as trustee.
The testator was an illiterate person, but had had the Will in her possession for several years prior to her death. The county judge held that there was no testimony that the Will was ever read or explained to the testator and hence the purported Will was, by him, declared to be null and void. It was this order that was appealed.
The basis for the lower court's order holding the Will invalid was the authority in In re Deane's Estate, Fla.App.1963, 153 So.2d 26, which held that the proponent of a Will had an additional burden of showing that the Will did not run counter to the natural affection of the testator and a showing that this was hie Will, freely and voluntarily executed. The lower court, in its order, impliedly held that the testimony was not sufficient to meet this burden and that the Will was invalid.
On appeal the appellant posed the following questions: a) Did the lower court err in applying the doctrine set out in In re Deane's Estate, Fla.App.1963, 153 So.2d 26? b) Are the findings of the lower court contrary to the weight of the evidence? c) Did the lower court misinterpret the legal effect of the evidence in its entirety, and are its findings nonconforming with general principles of law?
The lower court based its order denying probate upon In re Deane's Estate, supra, wherein it is stated:
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Make it an even 10: courts rely on more than the seven Carpenter factors to analyze a claim for undue influence of a will or trust.
...unreasonableness in the context of undue influence, fraud, or lack of testamentary capacity. (65) In the case of In re Estate of Tobias, 192 So. 2d 83 (Fla. 2d DCA 1966), the court reviewed the provisions of a will that left the decedent's only heir, a daughter, only $5,000, despite testimo......