IN RE THE ESTATE OF EMILY PAULK, DECEASED. SHAFFEY A. BASHURE, APPELLANT,
v.
ROSALIE LINDAMOOD, GEORGE BASHURE, AND BARNETT BANKS TRUST COMPANY, N.A., AS PERSONAL REPRESENTATIVE OF THE ESTATE OF EMILY B. PAULK, DECEASED, AND OLGA DAVIS, APPELLEES
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In this probate dispute, the court affirmed the trial court's denial of a petition to revoke probate of Emily Paulk's will, finding that although the appellant raised a presumption of undue influence, the trial court properly found that the presumption had been satisfactorily explained by the beneficiary's reasonable account of her role in the decedent's affairs.
The court affirmed the trial court's denial of revocation, holding that: (1) the presumption of undue influence was satisfactorily explained by the beneficiary's reasonable explanation for her active role; (2) the motion for recusal was properly denied as it was filed well after final judgment and showed no patent prejudice; (3) the drafting attorney's testimony was properly admitted as the attorney was not an interested person; and (4) the exclusion of the undisclosed rebuttal witness's testimony was proper to prevent surprise and prejudice.
[1] A presumption of undue influence can be overcome by a satisfactory explanation of the beneficiary's active role in the decedent's affairs.
[2] The trier of fact has the function to weigh evidence, assess witness credibility, and determine if undue influence occurred.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the trial court did not expressly address the testimony of Mr. Robert Palmer. Nevertheless, the record reflects sufficient evidence by which the trial court could find that the beneficiary had provided a reasonable explanation for her active role in the decedent's affairs.”
Establishes that the trial court could sustain its finding on the undue influence issue even without explicit discussion of all testimony, based on sufficient evidence of a reasonable explanation.
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Join FLexlaw to unlock all legal intelligenceThe appellant contested the probate of Emily Paulk's will, alleging undue influence. The beneficiary (Rosalie Lindamood) had played an active role in …
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PER CURIAM.
This cause is before us for review of the trial court’s denial of revocation of probate. After careful examination of the record and consideration of the legal arguments advanced by counsel, we have determined there is competent and substantial evidence to support the trial court’s finding that, although appellant raised a presumption of undue influence, the presumption had been satisfactorily explained.
In making this determination, we recognize the trial court did not expressly address the testimony of Mr. Robert Palmer. Nevertheless, the record reflects sufficient evidence by which the trial court could find that the beneficiary had provided a reasonable explanation for her active role in the decedent’s affairs. In re Estate of Carpenter, 253 So. 2d 697, 704 (Fla.1971). At that point, it was the function of the trial court, as the trier of fact to weigh the evidence, assess the credibility of the witnesses, and determine whether the evidence established] the occurrence of undue influence. Cripe v. Atlantic First National Bank, 422 So. 2d 820 (Fla. 1982).
Ahlman v. Wolf, 483 So. 2d 889, 892 (Fla. 3d DCA 1986).
By the same token, we find no error in the trial court’s denial of the motion for recusal. The motion for recusal was filed well after entry of the final judgment. Fla.R.Civ.P. 1.432(c); Fischer v. Knuck, 497 So. 2d 240, 241 (Fla.1986). Furthermore, this record does not indicate the existence of the patent prejudice disapproved by the court in Pistorino v. Ferguson, 386 So. 2d 65 (Fla. 3d DCA 1980).
In like manner, we find no error in the trial court’s admission of the testimony of the attorney who drafted the challenged testamentary documents. The attorney was not an interested person within the contemplation of section 90.602, Florida Statutes. See In re Estate of Udell, 324 So. 2d 703 (Fla. 4th DCA 1975), cert. denied, 336 So. 2d 108 (Fla.1976).
Finally, we approve the trial court’s decision to exclude the testimony of the rebuttal witness who had not been listed as a witness, and who was not disclosed to the objecting parties prior to being called to testify. The manner in which the rebuttal witness was called operated to surprise the objecting parties with no opportunity to cure the prejudice. Binger v. King Pest Control, 401 So. 2d 1310, 1313-1314 (Fla. 1981). Therefore, we affirm the final judgment entered in this cause.
SMITH, JOANOS and BARFIELD, JJ., concur.
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In re Est. OF Emily B. Paulk v. Lindamood, 529 So. 2d 1150 (Fla. 1st DCA 1988)…t court from again taxing costs against appellant. AFFIRMED in part, REVERSED in part. SMITH, C.J., and NIMMONS, J., concur. . This court has jurisdiction pursuant to Fla.R. App.P. 9.130(a)(4). . This order was affirmed in In re Estate of Paulk, 503 So. 2d 368 (Fla. 1st DCA), rev. denied, 513 So. 2d 1062 (Fla.1987). . The Florida Bar Code of Professional Responsibility was, effective January 1,1987, deleted as a separate entity and is now integrated into a single subject entitled Rules Regulating the Flo…
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Elson v. Vargas, 520 So. 2d 76 (Fla. 3d DCA 1988)…was established, it became the burden of the will proponent to come forward with a reasonable explanation for her active role in the decedent’s affairs to rebut the presumption of undue influence. Carpenter, 253 So. 2d at 704; In re Estate of Paulk, 503 So. 2d 368 (Fla. 1st DCA), review denied, 513 So. 2d 1062 (Fla.1987); Blades, 475 So. 2d at 938. This court, in deciding Ahlman v. Wolf, 483 So. 2d 889, 892 (Fla. 3d DCA 1986), stated that “Carpenter requires only a minimal response to overcome the presumption…
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Spero John Krevatas v. Wright, 518 So. 2d 435 (Fla. 1st DCA 1988)…Fambrough had no interest in increasing the amount in the account. With respect to the remainder of the funds at issue, we find that appellant’s emphasis on the fact that “no undue influence was proven” is misplaced, and that In Re Estate of Paulk, 503 So. 2d 368 (Fla.lst DCA 1987), rev. denied 513 So. 2d 1062 (Fla.1987), cited as support, is inapposite. Because there is no evidence before this court to indicate that Mrs. Fambrough was even aware that Mr. Krevatas was making large cash transfers into the acc…
Authorities Cited
- Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981)
- Anne Marie Fischer v. Honorable Francis X. Knuck, 497 So. 2d 240 (Fla. 1986)
- In re Est. of Coketine Bray Carpenter v. Carpenter, 253 So. 2d 697 (Fla. 1971)
- Cripe v. Atl. First Nat'l Bank OF Daytona Beach, 422 So. 2d 820 (Fla. 1982)
- Pistorino v. Ferguson, 386 So. 2d 65 (Fla. 3d DCA 1980)
- Ahlman v. Wolf, 483 So. 2d 889 (Fla. 3d DCA 1986)
- In re Est. of Daniel A. Udell v. Rose, 324 So. 2d 703 (Fla. 4th DCA 1975)