In a recent case, Bresky Law was originally retained to represent the personal representative in the administration of a probate estate that poured into a revocable living trust. During the probate administration, one of the trust beneficiaries filed an adversarial trust action, claiming the trust amendment had been procured by undue influence. Bresky Law represented the trustee, and successfully disposed of the adversarial trust contest.
Bresky Law moved twice for dismissal without prejudice based on lack of personal jurisdiction over the out-of-state trustee and for failure to state a cause of action for which relief could be granted. In both instances, the trial court granted the dismissal without prejudice to refiling, and Bresky Law successful postponed discovery.
Under Florida law, when the validity of a will or trust is challenged on the grounds of undue influence “the contestant must prove the testamentary disposition resulted from the exercise of undue influence on the mind of the testator. The will contestant’s initial burden can be met by proof of sufficient facts to raise a presumption of undue influence. A presumption of undue influence arises upon a showing that a party who (1) occupied a confidential relationship with the testator, (2) was a substantial beneficiary under the will, and (3) was active in procuring the instrument. […] Once the presumption of undue influence arises, the burden shifts to the beneficiary of the will to come forward with a reasonable explanation of his active role in the preparation of the decedent’s will. If the beneficiary satisfies that burden, the presumption vanishes. […] If the presumption is unrebutted, it alone is sufficient to sustain the contestant’s burden.” Brock v. Brock, 692 So. 2d 907, 911-912 (Fla. 1st DCA 1996) (citations omitted).
In an undue influence case, it is especially important to aggressively seek dismissal if possible. In the instant case, Bresky Law obtained an order dismissing the case with prejudice and a final judgment. Bresky Law is pleased to provide finality for their client without a trial, so the probate and trust administration may now resume unhindered.