Estate of Kester v. Rocco
117 So. 3d 1196
| Fla. Dist. Ct. App. | 2013Background
- Barbara J. Kester died testate on January 21, 2011, with codicils in December 2010 naming five heirs and designating Glenna and David as co-personal representatives.
- Glenna, as durable power of attorney and later personal representative, took possession of three accounts after Mrs. Kester’s death (Farmer & Merchants CD, First Florida Credit Union account, and an AIG annuity).
- The AIG annuity Beneficiaries were Glenna, Monte, and David; Glenna testified she distributed the brothers’ shares to them and kept her own share.
- Pamela and Cynthia challenged Glenna’s asset inventory and sought return of the three assets to the estate, arguing undue influence and breach of fiduciary duties.
- The trial court found undue influence during the period May 2010–January 2011, deemed Glenna’s actions a constructive trust, and ordered repayment and damages, while removing Glenna and David as co-personal representatives.
- On appeal, the appellate court reversed, holding the evidence insufficient to prove undue influence or breach of fiduciary duties, and remanded for proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was undue influence proven? | Kester heirs contend Glenna coerced the testatrix. | Glenna argues close familial ties and independence of will negate influence. | Insufficient evidence; no undue influence shown. |
| Did Glenna breach fiduciary duties? | Glenna misused positions to alter distributions contrary to wishes. | Actions authorized by bank documents and consistent with testamentary plan. | No breach proven. |
| Was a constructive trust appropriate? | Constructive trust remedy justified by undue influence and misappropriation. | No breach established; trust remedy inappropriate. | Constructive trust not warranted. |
| Did the to-do list support findings? | Unsigned to-do list reflected Glenna’s procurement actions. | To-do list is unsigned, unwitnessed, and not a valid dispositive writing. | To-do list insufficient to prove procurement. |
Key Cases Cited
- Raimi v. Furlong, 702 So.2d 1273 (Fla. 3d DCA 1997) (undue influence defined; over-persuasion destroys free will)
- Estate of Brock, 692 So.2d 907 (Fla. 1st DCA 1996) (presumption of undue influence based on confidential relation and active procurement)
- Carter v. Carter, 526 So.2d 141 (Fla. 3d DCA 1988) (dutiful adult child; lack of presumption of undue influence)
- In re Barker's Estate, 52 So.2d 785 (Fla.1951) (probate evidentiary standards for will contests and capacity)
- Hade v. Estate of Helling, 811 So.2d 822 (Fla. 5th DCA 2002) (inequality of mental capacity as a factor in undue influence analysis)