RBC v. TOMPKINS

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Docket Number

No. 2D07-256.

Attorney(S)

John T. Mulhall III of Rutherford Mulhall, P.A., Boca Raton, for Appellant. Diane E. McGill, Winter Haven, for Appellee.

Judges

CANADY, Judge.

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Smart Summary

Factual and Procedural Background

Barbara Tompkins obtained a trial court order admitting the will of Lewis A. Simoneau into probate and was appointed personal representative of his estate. The will, executed in November 2004, named Tompkins as a residual beneficiary. In June 2005, RBC Ministries filed a petition to revoke probate of the will, alleging the decedent lacked testamentary capacity and that the will was procured by undue influence. RBC Ministries claimed to be the residual beneficiary under an earlier will and trust executed in 1997. Tompkins moved for summary judgment, arguing RBC Ministries could not prove grounds for revocation. The trial court granted summary judgment in favor of Tompkins, finding no material issue of fact regarding undue influence. RBC Ministries appealed, contending the existence of a presumption of undue influence precluded summary judgment in Tompkins' favor.

Legal Issues Presented

Whether the trial court erred in granting summary judgment on RBC Ministries' claim that the will was procured by undue influence, given the existence of a rebuttable presumption of undue influence.
Whether the evidence presented established that Tompkins was not "active in procuring" the contested will such that the presumption of undue influence was rebutted.

Arguments of the Parties

Appellant's Arguments (RBC Ministries)

The undisputed facts establish a presumption of undue influence by Tompkins over the decedent.
Summary judgment should not have been granted because the party bearing the burden to disprove the presumption (Tompkins) failed to do so beyond dispute.

Appellee's Arguments (Tompkins)

RBC Ministries failed to show that Tompkins exercised undue influence sufficient to overcome the decedent's free will.
Evidence that the decedent was coherent and aware rebuts the presumption of undue influence, shifting the burden back to RBC Ministries to prove undue influence by a preponderance of the evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sherry v. Regency Ins. Co., 884 So.2d 175 (Fla. 2d DCA 2004)	Summary judgment standard: no genuine issues of material fact and movant entitled to judgment as a matter of law.	Applied to review the grant of summary judgment de novo and to affirm the criteria for granting summary judgment.
Holl v. Talcott, 191 So.2d 40 (Fla. 1966)	Summary judgment requires no genuine triable issues of fact.	Supported the standard that the moving party must conclusively prove absence of genuine issues.
Garden St. Iron Metal, Inc. v. Tanner, 789 So.2d 1148 (Fla. 2d DCA 2001)	Facts must be viewed in the light most favorable to the nonmoving party on summary judgment.	Guided the court to construe evidence favorably to RBC Ministries.
Heisig v. Heisig (In re Estate of Short), 620 So.2d 1106 (Fla. 4th DCA 1993)	Where a rebuttable presumption exists, weighing evidence against the presumption cannot be done on summary judgment.	Prevented summary judgment because the presumption of undue influence required evidentiary weighing.
Newman v. Smith, 77 Fla. 633, 82 So. 236 (1918)	Defines undue influence as overpersuasion or coercion destroying free will of testator.	Established the substantive standard for undue influence.
Carpenter v. Carpenter (In re Estate of Carpenter), 253 So.2d 697 (Fla. 1971)	Presumption of undue influence arises when a substantial beneficiary in a confidential relationship is active in procuring the will; lists factors indicating active procurement.	Applied the criteria to the facts, finding sufficient evidence of active procurement to raise the presumption.
§ 732.5165, Fla. Stat. (2005)	Wills procured by undue influence are void.	Legal basis for invalidating the will if undue influence is proven.
§ 733.107(2), Fla. Stat. (2005)	Presumption of undue influence shifts burden of proof to proponent of will.	Supported the court’s conclusion that the burden shifted to Tompkins to disprove undue influence.
§ 90.302(2), Fla. Stat. (2005)	Presumption affecting burden of proof imposes burden on party against whom it operates.	Clarified the nature of the presumption and burden shifting.
Diaz v. Ashworth, 963 So.2d 731 (Fla. 3d DCA 2007)	Once presumption of undue influence arises, burden shifts to will proponent to prove nonexistence of undue influence by preponderance of evidence.	Reinforced the burden shifting principle applied here.
Hack v. Janes, 878 So.2d 440 (Fla. 5th DCA 2004)	Same as Diaz: burden shifting on undue influence presumption.	Supported the court’s application of burden of proof rules.
Allen v. In re Estate of Dutton, 394 So.2d 132 (Fla. 5th DCA 1981)	Undue influence issues cannot be resolved on summary judgment once presumption arises; trial is necessary for weighing evidence.	Provided authority for reversing summary judgment and remanding for trial.
Knight v. Knight (In re Estate of Knight), 108 So.2d 629 (Fla. 1st DCA 1959)	Summary judgment inappropriate when party must overcome presumption of undue influence; trial required for cross-examination and rebuttal testimony.	Supported the procedural requirement for trial rather than summary judgment.

Court's Reasoning and Analysis

The court began by reviewing the standard for summary judgment, emphasizing that it is only appropriate when no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law. The court noted that where a rebuttable presumption applies and the movant bears the burden of disproving the presumed fact, summary judgment is precluded because weighing evidence against the presumption is inappropriate at this stage.

Applying this principle, the court examined the presumption of undue influence, which arises when a substantial beneficiary in a confidential relationship is active in procuring a will. The court identified multiple factors from Carpenter that indicate active procurement, including Tompkins’ presence at execution, drafting the will herself, knowledge of its contents, securing witnesses, and possession of the will after execution.

Because Tompkins conceded her status as a substantial beneficiary and confidential relationship with the decedent, she bore the burden to show beyond dispute that she was not active in procuring the will. The court found she failed to do so, as the evidence met several criteria for active procurement, thereby raising the presumption of undue influence.

Given the presumption arose, the court held that undue influence could not be resolved on summary judgment. The court cited precedent requiring trial proceedings to allow for cross-examination and presentation of rebuttal evidence. Thus, the court reversed the summary judgment on the undue influence claim and remanded for further proceedings, while affirming the judgment on other issues without comment.

Holding and Implications

The court’s final ruling is: the summary judgment in favor of Tompkins on the undue influence claim is reversed and the case is remanded for further proceedings.

This decision means that the issue of undue influence must be resolved at trial, allowing the parties to present evidence and cross-examine witnesses. The ruling does not determine the ultimate outcome on the undue influence claim but requires a full evidentiary hearing. The court affirmed the summary judgment on other claims without comment, indicating no change to those aspects. No new precedent was established beyond the application of existing law on summary judgment and undue influence presumptions.

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RBC MINISTRIES, Appellant, v. Barbara TOMPKINS, as personal representati

CANADY, Judge.

RBC Ministries appeals a final summary judgment entered in favor of Barbara Tompkins, as personal representative of the estate of Lewis A. Simoneau, on RBC Ministries' petition to revoke probate of will. We reverse the summary judgment as it relates to RBC Ministries' claim that the will was obtained by undue influence, and we remand for further proceedings on that issue. We affirm without comment on the remaining issues raised by RBC Ministries.

I. Background

Tompkins obtained a trial court order admitting a will of the decedent, Lewis A. Simoneau, into probate and appointing her as the personal representative of the decedent's estate. The will was executed in November 2004 and named Tompkins as a residual beneficiary. In June 2005, RBC Ministries filed its petition for revocation of probate of will on the grounds that the decedent did not have the testamentary capacity to execute the will and that the will was procured by undue influence. RBC Ministries alleged that it was the residual beneficiary under a will and trust executed by the decedent in September 1997.

Tompkins filed a motion for summary judgment on the basis that RBC Ministries could not prove the grounds for revocation. Concluding that "there is no material issue of fact showing that the Last Will and Testament was procured by undue influence," the trial court granted Tompkins' motion. RBC Ministries now appeals, claiming that the trial court erred in granting a motion for summary judgment when the undisputed facts established a presumption of undue influence by Tompkins over the decedent. RBC Ministries claims that when such a presumption arises, summary judgment should not be granted in favor of the party who has the burden of overcoming the presumption.

II. Analysis A. The Summary Judgment Standard

An order granting summary judgment is reviewed de novo. Sherry v. Regency Ins. Co., 884 So.2d 175, 177 (Fla. 2d DCA 2004). "A summary judgment is properly entered when the record discloses (1) that no genuine issues of material fact remain, and (2) that the movant is entitled to judgment as a matter of law." Id. (citing Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966)); see also Fla.R.Civ.P. 1.510(c). "When reviewing a summary judgment, we must view the facts in the light most favorable to the nonmoving party." Garden St. Iron Metal, Inc. v. Tanner, 789 So.2d 1148, 1149 (Fla. 2d DCA 2001). Summary judgment is only appropriate if the moving party has met the burden of conclusively proving the nonexistence of "genuine triable issues." Holl, 191 So.2d at 43.

Of particular relevance here is the rule that where there is evidence supporting the existence of a rebuttable presumption with respect to a material issue and the moving party bears the burden of disproving the presumed fact, the moving party is precluded from obtaining summary judgment. Determining whether such a presumption has been rebutted requires a "weighing [of] the available evidence against the presumption," which cannot appropriately be undertaken in summary judgment proceedings. Heisig v. Heisig (In re Estate of Short), 620 So.2d 1106, 1106 (Fla. 4th DCA 1993).

B. Undue Influence

A will — or a portion thereof — procured by undue influence is void. § 732.5165, Fla. Stat. (2005). "Undue influence comprehends overpersuasion, coercion, or force that destroys or hampers the free agency and will power of the testator." Newman v. Smith, 77 Fla. 633, 667 and 668, 82 So. 236, 246 (1918).

"[I]f a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will, the presumption of undue influence arises." Carpenter v. Carpenter (In re Estate of Carpenter), 253 So.2d 697, 701 (Fla. 1971). The supreme court has provided the following nonexclusive list of criteria which are relevant to determining whether a beneficiary has been active in procuring a will:

(a) presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution.

Carpenter, 253 So.2d at 702. Will contestants are not "required to prove all the listed criteria to show active procurement." Id. Indeed, "it will be the rare case in which all the criteria will be present." Id.

The rebuttable "presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof." § 733.107(2), Fla. Stat. (2005). Such a presumption "affecting the burden of proof — as distinct from a presumption affecting the burden of producing evidence — "imposes upon the party against whom it operates the burden of proof concerning the nonexistence of the presumed fact." § 90.302(2), Fla. Stat. (2005). Accordingly, once a will contestant establishes the existence of the basis for the rebuttable presumption of undue influence, the burden of proof shifts to the proponent of the will to establish by a preponderance of the evidence the nonexistence of undue influence. Diaz v. Ashworth, 963 So.2d 731, 735 (Fla. 3d DCA 2007); Hack v. Janes, 878 So.2d 440, 443-44 (Fla. 5th DCA 2004).

C. The Instant Case: The Presumption of Undue Influence Precluded Summary Judgment

Here, evidence was presented showing that Tompkins is a substantial beneficiary under the will and that Tompkins had a confidential relationship with the decedent. In fact, Tompkins does not challenge this evidence. Instead, Tompkins contends that RBC Ministries failed to show that she exercised such influence over the decedent that his free agency and will power were overborne. Based on the evidence that she presented tending to show that the decedent was coherent, alert, and aware, Tompkins asserts that she rebutted the presumption of undue influence and that the burden therefore shifted to RBC Ministries to show by a preponderance of the evidence that undue influence occurred. Tompkins' argument on these points is unsuccessful.

Contrary to Tompkins' argument, the granting of summary judgment to Tompkins on the undue influence issue could not be justified if Tompkins failed to establish beyond dispute that the presumption of undue influence did not arise. Given her concession that she is a substantial beneficiary and that she had a confidential relationship with the decedent, to show that the presumption of undue influence did not arise, Tompkins must establish that the evidence shows without dispute that she was not "active in procuring the contested will." Carpenter, 253 So.2d at 701.

On the active procurement issue, the record before the trial court shows the following facts: Tompkins was present at the execution of the will. She was present when the decedent expressed a desire to make a will. She did not recommend an attorney to draft the will, but she herself drafted the will on her home computer. Because she drafted the will, she was aware of the contents of the will before it was executed. Tompkins secured the witnesses to the will, but the witnesses were neutral parties. Finally, Tompkins had possession of the will after its execution.

Accordingly, the circumstances identified in Carpenter's criteria (a), (b), (d), (f), and (g) are all present here. Circumstances similar to — but, in fact, more egregious than — the circumstances identified in criteria (c) and (e) are also present here. In view of these facts, there is no basis for concluding that Tompkins established beyond dispute that she was not active in procuring the contested will. Given Tompkins' conceded status as a substantial beneficiary under the will, her admitted confidential relationship with the decedent, and her failure to show beyond dispute that she was not active in procuring the will, Tompkins did not establish that the presumption of undue influence had not arisen. See id. at 702 (holding that "at least four of the factors" regarding active procurement were "sufficient to raise the presumption of undue influence" where the beneficiary was a substantial beneficiary who had a confidential relationship with the decedent).

"[O]nce the presumption arises, the undue influence issue cannot be determined in a summary judgment proceeding." Allen v. In re Estate of Dutton, 394 So.2d 132, 135 (Fla. 5th DCA 1981). "[A] summary judgment cannot be entered in favor of one who has the burden of over-coming the presumption of undue influence for such proceeding does not afford the contesting party the right of cross-examination and an opportunity to present rebuttal testimony." Knight v. Knight (In re Estate of Knight), 108 So.2d 629, 631 (Fla. 1st DCA 1959). Instead, "the proponent of the contested will must come forward with a reasonable explanation of his active role in the decedent's affairs," and "the trial court is left to decide the case in accordance with the greater weight of the evidence." Allen, 394 So.2d at 135.

III. Conclusion

The trial court erred in entering a summary judgment on the issue of undue influence. Therefore, we reverse the trial court's order and remand for further proceedings. "In remanding this matter for trial we do not intend to suggest in any way the proper disposition to be made by the trial court in light of such evidence as may be formally presented." Allen, 394 So.2d at 135.

Affirmed in part; reversed in part; remanded.

FULMER and CASANUEVA, JJ., Concur.