In re Estate of Murphy, — So.3d —-, 2015 WL 6777216 (Fla. 2d DCA November 6, 2015)
This case has it all. It’s been in the news for years (see here), resulted in a prominent lawyer’s tragic fall from grace and eventual disbarment (see here), was at least partially responsible for new legislation fundamentally changing Florida common law involving gifts to lawyers (see here), and last but not least, it’s produced a must-read appellate decision dissecting Florida’s version of the dependent relative revocation doctrine and how it comes into play when a will’s challenged on undue influence grounds.
Dependent relative revocation (“DRR”) doctrine:
In this latest chapter of the Murphy estate saga the 2d DCA’s provided a detailed road map for litigating undue influence claims against the backdrop of the dependent relative revocation (“DRR”) doctrine, which although centuries old (it’s been around since 1717), rarely gets much air time in our appellate courts. Without getting sidetracked by why I think this issue rarely gets appealed, suffice it to say the DRR doctrine’s lurking under the surface of every will contest where the testator signed more than one will (which is almost always). Here’s how the 2d DCA defined the doctrine and its intended purpose:
We begin by examining the legal construct at the heart of this appeal, the doctrine of dependent relative revocation. Founded in the common law of early eighteenth century England, the doctrine was first adopted by the Florida Supreme Court, which explained:
This doctrine has been stated and reiterated by many courts since it was first expounded in 1717, but stated simply it means that where [a] testator makes a new will revoking a former valid one, and it later appears that the new one is invalid, the old will may be re-established on the ground that the revocation was dependent upon the validity of the new one, [the] testator preferring the old will to intestacy.
Stewart v. Johnson, 142 Fla. 425, 194 So. 869, 870 (Fla.1940) (citation omitted). Grounded in the axiom of probate law that intestacy should be avoided whenever possible, the doctrine of dependent relative revocation, our court has observed, is “a rule of presumed intention” that creates a rebuttable presumption that the testator would have preferred to have a prior will effectuated over statutory intestacy.
The DRR doctrine is intended to avoid intestacy whenever possible. See In re Estate of Baer, 446 So.2d 1128, 1128 (Fla. 4th DCA 1984) (“[T]he law abhors intestacy.”). It does this by focusing on a will’s revocation clause. These are simple, one-line boilerplate clauses included in all new wills that avoid confusion by explicitly revoking all prior wills. Here’s a sample revocation clause published on the Nolo website:
“I revoke all wills and codicils that I have previously made.”
If a testator’s last will’s invalid for any reason, the DRR doctrine tells us we’re supposed to presume his revocation clause is also invalid, which avoids intestacy by resurrecting his most recently signed and preexisting “similar” will. In undue-influence cases, this presumption can be overcome (“rebutted”) if there’s evidence that the testator specifically wanted to revoke all of his prior wills no matter what happens, in other words, he intended to die intestate rather than resurrect a prior will. Here’s how the 2d DCA made this point:
In cases of undue influence, if a prior will is sufficiently similar to an invalidated will then the presumption arises but may be rebutted by evidence that “the revocation clause was not invalidated by undue influence and that it was not intended by the decedent to be conditional on the validity of the testamentary provisions” of the will. Wehrheim, 905 So.2d at 1009–10; cf. § 732.5165 (stating any part of a will procured by fraud, duress, mistake or undue influence is void, “but the remainder of the will not so procured shall be valid if it is not invalid for other reasons”).
Who bears the burden of proof?
In real life, who bears the burden of proof can determine the outcome of a case. So who bears the burden of proof in these cases? Depends. If a will’s set aside on undue influence grounds, it’s the party arguing against application of the DRR doctrine. Here’s why:
The Florida Probate Code clarifies that presumptions arising from undue influence “implement public policy” that justify shifting the entire burden of proof when a presumption arises. § 733.107(2), Fla. Stat. (2014) (“In any transaction or event to which the presumption of undue influence applies, the presumption implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301–90.304.”); see also Hack v. Janes, 878 So.2d 440, 443 (Fla. 5th DCA 2004) (“The 2002 amendment to section 733.107, adding subsection 2, was intended to incorporate sections 90.301–90.304 of the Florida Evidence Code, and require a shifting of the burden of proof after the presumption of undue influence arises in a will contest.”). Thus, the doctrine of dependent relative revocation, when applied in a case of undue influence, shifts the burden of proof to the parties opposing its application.
How “similar” does a prior will have to be?
But the DRR doctrine doesn’t make sense if a testator’s prior will bears no resemblance whatsoever to his invalidated will. In other words, it doesn’t make sense to presume a testator would want to resurrect a prior will if it’s antithetical to his last will. So how “similar” does a prior will have to be for the DRR doctrine to apply? Does it have to be identical, or close enough to arguably fit into a general pattern of testamentary intent? Depends on how narrowly or broadly you define the word “similar.” According to the 2d DCA, it should be defined broadly:
The discrete point of contention here is one of measurement. Somewhere in the conceptual space between “identical” and “antithetical” resides “similar,” and the parties disagree where its boundaries should be marked for this kind of case. One could draw the notion of sufficient similarity between wills broadly or narrowly. Florida courts have seldom expounded upon the issue, but in the context of undue influence we would incline toward a broader definition of similarity, one that takes into account the testamentary instruments themselves and any admissible evidence that may be relevant. We do so for several reasons. . . .
Keeping in mind that the requirement of sufficient similarity serves to ensure the indicia of the testator’s intent, any construction of similarity must necessarily account for the intrusion of another’s intentions in cases of undue influence. A broad construction of similarity does so. . . .
Indeed, to hold otherwise, to apply an overly strict or narrow construction of similarity, would likely consign the doctrine of dependent relative revocation to a minute corner of irrelevance for cases of undue influence. We see no reason to corral the presumption for this class of cases.
Case Study:
This case revolves around a woman who died at that age of 107 after having executed at least six wills: one in 1989, a second in 1991, a third in February 1992, a fourth in August 1992, a fifth in 1993, and a sixth in 1994. The last five wills provided for nominal preresiduary gifts then left the bulk of her multi-million dollar estate to four residuary devisees. In 2008 the trial court determined that three of the four residuary devisees were guilty of undue influence. The fourth residuary beneficiary was “Ms. Rocke,” the decedent’s second cousin. She last appeared as one of four residuary beneficiaries in the 1992 will. The trial court held the DRR doctrine didn’t apply, which meant the decedent was deemed to have died intestate.
OK, so tying together all the elements summarized above, the 2d DCA applied the following three-part test to this case, which is the same test we should all apply in any case involving multiple wills and allegations of undue influence (which is always):
[T]he proper analysis in this case on remand should have proceeded along the following sequence: (i) did Ms. Rocke establish sufficient similarity between Mrs. Murphy’s wills that would have given rise to the doctrine of dependent relative revocation; (ii) if so, were there sufficient record facts to overcome that presumption so that the 1994 will’s revocation clause [should be enforced]; and (iii) if not, if the presumption remained intact, which, if any, will or residuary devise in Mrs. Murphy’s prior wills reflected her true testamentary intention?
So how do you prove “similarity”? Think: “extrinsic” evidence.
The 2d DCA concluded all three prongs of the DRR doctrine cut in Ms. Rocke’s favor, meaning she ended up inheriting the bulk of the fortune at stake in this case. In arriving at its final holding, the 2d DCA “parted company” with the 5th DCA on an important evidentiary point. The 2d DCA concluded the trial court should have considered extrinsic evidence (which it had refused to do) when ruling upon the “similarity” of the wills at issue in this case, which is directly at odds with the 5th DCA’s ruling in Wehrheim:
But we must part company with the Fifth District insofar as Wehrheim would preclude a probate court from considering extrinsic evidence when deciding the doctrine’s applicability in claims involving undue influence. Wehrheim, 905 So.2d at 1008 (noting that a court “must confine its inquiry to the testamentary documents before it without resort to extrinsic evidence”). In determining whether testamentary instruments are sufficiently similar for purposes of the doctrine of dependent relative revocation, a court should always look first to the documents themselves. Brickell v. DiPietro, 145 Fla. 23, 198 So. 806, 810–11 (Fla.1940) (“It is the duty of the court to give effect to the intention of the testator where it can be ascertained and determined from the four corners of the will.”). However, in cases of undue influence, its analysis cannot simply end there.
If you’re involved in one of these cases, this point is crucial. It will shape the entire course of your litigation. Regardless of which side of the argument you end up on, you’ll want to know why the 2d DCA decided extrinsic evidence should be allowed:
We find no reason to erect a barrier between admissible evidence and the task of sifting similarities between wills that have been affected by undue influence. Rather, we join the courts of our sister states to hold that, in cases involving undue influence, a probate court is not confined to the testamentary documents when determining whether the doctrine of dependent relative revocation should apply. See Estate of Anderson, 56 Cal.App.4th 235, 247–49, 65 Cal.Rptr.2d 307 (Cal.Ct.App.1997) (observing that questions of ambiguity or revocation of a will permit consideration of extrinsic evidence; “[a]pplying these principles, we conclude that extrinsic evidence may be considered in determining whether Anderson conditioned the revocation of the first will on the exercise of the power of appointment in De Paul’s favor” (citing In re Kaufman’s Estate, 25 Cal.2d 854, 155 P.2d 831 (Cal.1945))); In re Estate of Anthony, 265 Minn. 382, 121 N.W.2d 772, 779 (Minn.1963) (remanding case to district court “to receive whatever extrinsic evidence of the testator’s intention may be available”). Upon a finding of undue influence, a probate court may consider any relevant, admissible evidence to decide if the testator intended a will’s revocation clause to be conditional upon the will’s efficacy.
So what’s the takeaway?
Far and away, the single most common line of attack in any will contest is undue influence. And in most of these cases there’s going to be at least one other will floating around that could conceivably get revived under the DRR doctrine. Which means the 2d DCA’s lengthy and detailed three-step analysis for how these cases should be litigated is a must read for Florida trusts and estates lawyers.
For those of us in the trenches, there’s another important — and scary — lesson to be drawn from this extraordinary case. As I reported here, if your client legitimately wants to include you in his or her will — there’s a right way to go about handling that scenario. Do it the “wrong” way and a proud reputation you’ve worked a lifetime to build could be irrevocably stained by ugly accusations of self-dealing and bad faith. The decedent’s drafting lawyer had been practicing law in this state since 1951. As noted by the 2d DCA, after decades of good work, this case will sadly overshadow an otherwise “exemplary professional reputation.” It didn’t have to end this way.
We need not recount all of the probate court’s findings of undue influence—which were quite extensive—but would echo the court’s sense of puzzlement as to why Mr. ___, an esteemed lawyer and a former city councilman, FBI agent, and Army Air Corps veteran, succumbed to the temptation to pursue a pecuniary windfall at the expense of a frail and susceptible client. Sadly, the pall of this case cast a long shadow over an otherwise exemplary professional reputation. Cf. Fla. R. Prof. Conduct 4–1.8(c) (“A lawyer shall not … prepare on behalf of a client an instrument giving the lawyer … any substantial gift unless the lawyer … is related to the client.”). We make this observation not to impugn the memory of Mr. ___, who passed away in 2014, but to state this simple point: the repercussions from a single ethical lapse may carry far beyond a lawyer’s license to practice law.