232 So. 2d 222 | Fla. Dist. Ct. App. | 1970
Appellants seek review of a final order rendered by the County Judge of Gadsden County sitting in probate which denied their petitions to revoke the last will and testament of the decedent, William Nelson.
By his last will the decedent bequeathed the major portion of his substantial estate to appellees in trust with unlimited discretion to distribute the income or corpus thereof for such religious, educational, scientific, charitable, or literary purposes as they shall see fit. Appellees were also named as executors of the will, without bond, which was prepared and drafted by them and kept in their exclusive possession from the date of its execution until the time of decedent’s death. Appellants contend that because of the compensation which appellees will receive both as executors of the will and trustees of the residuary estate, and the fees which they are in position to allow to the law firm of which they are partners for legal services to be rendered them in their official capacities, coupled with their unlimited discretion to determine the length of time the trust shall continue in existence and the purposes for which its assets shall be utilized constitute appellees as beneficiaries of the will. Appellants contend that because of the foregoing facts a fiduciary relationship existed between appellees and the decedent which, because of their beneficial interest in the will, gave rise to the presumption of undue influence.
In Zinnser v. Gregory
The Supreme Court of Alabama reached a similar conclusion on similar facts in the case of Zeigler v. Coffin.
“It is true that he will receive directly only compensation for his services, but the collateral benefits which will naturally follow such free and complete power and discretion, we think, in connection with the large fees he will receive, all together constitute him one benefited by those provisions of the will making him a trustee and which were not in the will prepared by the banker friend of decedent, and apparently never suggested or thought of until he reached Mobile. So that we think and hold that he has such a beneficial interest created by the will he wrote as to bring him within that aspect of the rule fixing the burden of proof as first hereinabove written.”
The court then proceeded to hold that the attorney trustee’s confidential relationship to the decedent and his participation in the benefits of the will were such as to raise a presumption of undue influence on his part, and that it was a factual question to be resolved by the trier of the facts as to whether such presumption is rebutted by a preponderance of the evidence.
In the case sub judice the trial judge carefully reviewed the evidence adduced by the parties at a five-day trial of this cause and held that even if a presumption of undue influence did arise, appellees had successfully rebutted that presumption by a preponderance of the evidence. Our review of the record reveals a sharp conflict in the evidence on this issue, but we find competent evidence to support the trial court’s finding and conclusion.
. In re Knight’s Estate (Fla.App.1959), 108 So.2d 629.
. Zinnser v. Gregory (Fla.1955), 77 So.2d 611.
. F.S. § 737.22, F.S.A.
. Zeigler v. Coffin (1929), 219 Ala. 586, 123 So. 22, 24, 63 A.L.R. 942.
. In re Starr’s Estate, 125 Fla. 536, 170 So. 620.
. Old Equity Life Insurance Co. v. Levenson (Fla.App.1965), 177 So.2d 50; Stoller v. Jaffe (Fla.App.1961), 125 So.2d 310.