RBC Ministries v. Tompkins - 974 So. 2d 569 (Fla. Dist. Ct. App. 2008)

Rule:

Once the presumption of undue influence arises, the issue cannot be determined in a summary judgment proceeding. A summary judgment cannot be entered in favor of one who has the burden of overcoming 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. 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. 

Facts:

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.

Issue:

Did the trial court err in entering a summary judgment on the issue of undue influence?

Answer:

Yes.

Conclusion:

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." 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.