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Contesting a will or challenging who should control the assets (and money) of an estate of someone who is dead, presumed dead, or missing not only makes for good plots in murder mysteries and thrillers, but it’s also something that probate lawyers and estate planning attorneys see happening every day in Florida.

Of course, the cases where lots of money is at stake or where someone famous is involved make for interesting news but those cases also highlight the sometimes difficult issues involved in Probate.  Every fight among loved ones as to who gets what and who gets to have the say-so over property and bank accounts is a major life event to those who are involved in the controversy, regardless of fame and fortune.

1.  The Missing Florida Millionaire Case Points Out How Estate Planning Can Help Resolve Disputes Between Family Members

Just this week, there is a lot of news coverage over missing Florida millionaire Guma Aguiar and in Tuesday’s post we discussed how the Broward County probate court was filled with family members and their attorneys who ended up seeing Broward County Probate Judge Mark Spieser approve the agreement reached by the parties, based upon the estate planning documents that Mr. Aguiar had the foresight to have in place.

Mr. Aguiar is missing.  There are fears that he has met an untimely end, but no one knows for sure if Guma Aguiar is dead or alive at this moment.  Legally, until proof of death is provided to the Florida Probate Court he will be assumed to be living and his Will will not be used (though it can be read for guidance on his wishes and desires).  Instead, things like Powers of Attorney and Conservatorship Orders will be the legal tools used to keep things going until the mystery is solved.

2.  The Thomas Kinkade Will Contest Shows How Not Finalizing Estate Planning Documents Fuels Fights Between Loved Ones

Over in California, another probate case is making the national news but it’s no mystery: famed artist Thomas Kinkade died from an accidental overdose of alcohol and Valium.  Now, his wife – who he was in the process of divorcing – and his live-in girlfriend/fiance are fighting in Probate Court over his assets. While Kinkade did have some advanced estate planning in place — he had a will, for example — it appears that he had some informal changes to that bequest, as seen in handwritten notes where he writes his desire that his girlfriend have $10 million in cash as well as the mansion they lived in.

Mr. Kinkade, unfortunately, did not take the time or make the effort to visit his estate planning lawyer and get those notes finalized as formal changes in his Will.  So, will the notes be recognized under the law now?  That’s what the Thomas Kinkade Estate legal fight in Probate Court is all about – and if it were in Florida, those notes might not be enough for the wishes of Mr. Kinkade to be recognized.

Larry Tolchinsky’s Tip:

In Florida, there are lots of laws and statutes on the books that control how someone’s assets (and debts) will be dealt with when that person passes away. Florida Probate Law is detailed and built upon trying to insure fairness in the distribution of assets and the wishes of the decedent will be respected.  Even if it means a courtroom fight must be fought in order to make sure that those wishes are clearly known.

For example, Florida Statute 732.517 states the following:

Penalty clause for contest.—

A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.

This means that Florida Judges are not going to honor any Will provision stating that anyone who tries to challenge the will is automatically disowned or otherwise punished for challenging the Will.  Why?

The Florida Legislature has decided it is against public policy to respect these provisions — that justice is served by allowing parties to bring their challenges to Wills into Florida courts and anyone who tries to prevent or stop anyone from contesting their will by language in the will itself won’t be allowed to do so.  (Which means other strategies need to be implemented in Florida by those who fear a shady relative or wrongdoer may try and make unlawful claims against their estate.)

Another example, Florida Statute 732.615:

Reformation to correct mistakes.—

Upon application of any interested person, the court may reform the terms of a will, even if unambiguous, to conform the terms to the testator’s intent if it is proved by clear and convincing evidence that both the accomplishment of the testator’s intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement. In determining the testator’s original intent, the court may consider evidence relevant to the testator’s intent even though the evidence contradicts an apparent plain meaning of the will.

This a new law – it became effective one year ago (July 1, 2011) and it allows Florida probate judges to take a clearly written Will (“unambiguous”) and still alter how things will be distributed, if in a will contest the challenger to that will can provide sufficient evidence (clear and convincing) to demonstrate that their arguments as to what the deceased person wanted is true, even if the clearly written Will doesn’t state that wish.

Which means that if Mr. Kinkade’s will contest were being fought in Broward County, Florida, for example, then the girlfriend would be allowed to contest his Last Will and Testament but whether or not she would win her challenge would be based upon whether or not the Probate Judge found that the notes and any other evidence she got admitted in the case was enough to meet the high standard of “clear and convincing” in order to allow the Court to ignore what is shown in the Will itself.

Lessons here?  In Florida, make sure that your Will reflects your current wishes and hopefully avoid fights among loved ones after your death.  (The Thomas Kinkade Lesson.) Also, get your estate planning in place now with things like Durable Powers of Attorney because you never know what tomorrow may bring and if you go missing or become physically incapacitated, then you will save a lot of emotional trauma by already having plans in place for your loved ones to follow.  (The Guma Aguiar lesson.)

Florida estate planning attorneys are not as expensive as you may think they are – many (like our law firm) provide alternative fee solutions to help clients deal with the financial realities of the current down-turned economy.  Don’t procrastinate in your estate planning!  It’s not wise to wait.

If you have questions or comments, please feel free to Chat with Larry in the comments below, at or (954) 458-8655.

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