Take this true story where a lady named Helen made a 1996 will that left her entire estate to her brother Edward, also naming Edward as the personal representative (executor). In 2001 Helen, who was a Florida resident, became sick and her brother traveled from his home in New Jersey several times to take care of his sister. She recovered, but is later hospitalized again with a grave illness.

Eventually, a caretaker named Maria became involved in Helen’s care. In 2003, when Helen’s condition worsens, Maria converts her garage into a bedroom, and Helen moves in. Helen pays Maria rent and for her services as a caregiver.When Edward spoke to Maria over the phone, Maria complained that she was not getting paid enough to take care of Helen. Edward sent Maria money. Helen became completely dependent upon Maria, and in September 2003 Maria took Helen to an attorney. At this new attorney’s office, Helen signed documents removing Edward as her power of attorney and health care surrogate, naming Maria. Moreover, Helen signed a new will naming Maria as the sole beneficiary and personal representative.

On August 6, 2004 Helen passed away in Maria’s home. Maria probates Helen’s will and waits until December, at the time that Maria can petition the court to close the probate on Helen’s estate, to tell Edward that Helen has passed. Edward learns of the will naming Maria, rather than him, as the beneficiary only after the statutory period under which he can challenge the will has expired.

When Edward attempts to challenge the will, the trial court dismissed his complaint for failing to state a cause of action and for late filing. Edward appeals the decision to the Florida 3rd District Court stating that although the alleged last will of his sister did not name him as a beneficiary, as an heir at law he was entitled to notice and having not received notice of the probate administration had the legal ability to challenge the will.

The appellate court agreed with Edward in a decision entered April 4, 2007 – Schilling v. Herrera.The appellate court found merit in Edward’s complaint that Maria deliberately failed to notify him of his sister’s death and of the probate proceedings as a part of a “calculated scheme” to prevent Edward from contesting Helen’s estate.

What does this mean for the rest of us? It may mean that if you have disinherited a relative who was named in a prior will, or who would receive a portion of your estate if you died without a will, that your personal representative has a duty to notify that disinherited relative of the proceedings. If notice to disinherited heirs becomes a legal requirement, it is certain to cause more litigation in probate estates.

On the other hand, it may prevent unscrupulous people from making off with decedent’s assets without having to justify whether the last will of the decedent was true or not.One may never know whether Helen was unduly influenced by Maria, or whether she truly felt gratitude for Maria’s care and felt that Maria deserved her assets more than Edward. The trial court will now have to sort that out.

But if you intend to disinherit a relative or past beneficiary, it will be more important now to document your reasons and to ensure that the elements of undue influence are not present when you sign any new documents.