Tuesday, June 22, 2010

Florida Heiress Leaves Bulk Of Estate To Caretakers And Dogs & Leaves Son A Fraction. Result? Probate Litigation & Undue Influence Allegations.

When Gail Posner of Miami, a daughter of the corporate takeover businessman Victor Posner, died in March 2010 at age 67 from cancer, a cute Chihuahua named Conchita and two other dogs inherited the right to live in her Miami Beach mansion and have a $3 million trust fund. Ms. Posner's caretakers and staff (7 bodyguards, housekeepers and other personal aides) were left a total of $26 million under her will, and some also were allowed to live, rent-free, in the mansion to care for the dogs.

Ms. Posner's only surviving adult son Brent Carr was left $1 million. He filed a lawsuit in probate court last week in Miami-Dade County seeking damages and a petition to revoke probate of will. A copy of the lawsuit has been posted by the Wall Street Journal.

The lawsuit names the trustee Mellon Private Trust and the caretakers and staff as defendants. Mr. Carr alleges among other things that there was undue influence by her caretakers. It makes for a sad story of what can happen after someone passes away. The Wall Street Journal's article on this lawsuit points out that Mr. Carr had his share of problems in the past.

For those that are interested in what a trust document looks like for a large estate, the Wall Street Journal also posted online a copy of Gail Posner's Revocable Trust. This trust was from 2008 almost two years before she died. The son's lawsuit contends that the changes to a trust from 1965 were the result of undue influence.

In order to prove undue influence, a person must show that there is a vulnerability to undue influence, the opportunity to influence, and the likelihood of the influencer to commit the act. Ms. Posner was only 67 and died of cancer. There are allegations of mental illness and prescription drug abuse in the son's lawsuit. The cost of defending this lawsuit could certainly cost the estate more than the $1 million left to Mr. Carr and obtaining a settlement when everyone knows the cost of litigation may be the goal of Mr. Carr and his attorneys.

It will be up to the courts to decide if Gail Posner knew what she was doing when she signed that will and no one who stood to gain from the will exerted "undue influence" on her. This will be a factual determination and good estate planning can help avoid subsequent charges of undue influence. Large and small estates alike need to be aware of this possibility and do their best to minimize probate litigation.

In a prior post, I wrote an article about six methods to reduce estate and probate litigation. For example, it would not be surprising if the attorneys had a video made of Gail Posner signing the new will or independent third-party witnesses on the issue of why the son was left $1 million and Ms. Posner's intent in amending her trust and will.

It will probably take a year or more for this case to be resolved. Further, since 98 percent of probate litigation cases settle, I would predict an out-of-court settlement in this matter unless Mr. Carr is deemed to be unreasonable or his settlement demands are considered to be much greater than his ability to recover at trial.

Posted by Henry (Hank) J. Morevec III. With respect to probate, Hank Moravec has over 20 years' experience as one of the best Los Angeles probate attorneys and Los Angeles probate litigation attorneys and is available should you need legal advice regarding your own or a family member's situation. For a consultation, You can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 to request a consultation.

The firm website is http://www.moravecslaw.com/. The firm is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108. There is ample free parking adjacent to the firm's office.

The office is located in San Marino, California, a suburb of Los Angeles in the San Gabriel area located 20 minutes from downtown Los Angeles. The firm represents clients throughout California and its attorneys appears in probate court throughout Southern California (Pasadena probate attorney, Los Angeles probate attorney, Santa Monica probate attorney, Pomona probate attorney, Torrance probate attorney, Long Beach probate attorney, Van Nuys probate attorney, Santa Barbara probate attorney, Orange County probate attorney, Riverside probate attorney, San Bernardino probate attorney).