Posts Tagged ‘pneumonia’

Florida Man’s Death May Lead To Claim Against Fiduciary

MARCH 10, 1997 VOLUME 4, NUMBER 36

John Montañez and Ouida Ray apparently had a stormy relationship. They were married in Florida in 1955 and their daughter Prudence was born later that year. Montañez and Ray divorced in 1956. In 1960 they remarried, and a second daughter, Rhoda, was born the next year. By February, 1961, Montañez and Ray were separated, never to have any significant contact again.

Although Montañez and Ray never divorced, Ray married another man in 1971. That marriage also ended in divorce.

Montañez was in the merchant marine, and so had little contact with his wife or two daughters. In fact, though he spent the last year of his life in a nursing home in Florida, none of his family even knew he was in the same state, much less visited him. He died in May, 1994, from septicemia, pneumonia and deeply infected bedsores.

During the year he spent in the Snapper Creek Nursing Home, Montañez had a court-appointed guardian and conservator, a private fiduciary organization known as Comprehensive Personal Care Services, Inc. After his death, Comprehensive was appointed Personal Representative of his estate. Snapper Creek Nursing Home promptly filed a claim for $20,696.23 against the estate, seeking payment for the care provided in his last months of life. Most of that claim arose from the costs of treating Montañez’ advanced bedsores.

Comprehensive objected to Snapper Creek’s bill, but quickly negotiated a settlement under which the estate would pay $15,000 and neither party would pursue any other claims against the other. Meanwhile, an heir-locator service found Ouida Ray, Prudence and Rhoda, and they became involved in the negotiations.

While Ray and her daughter Rhoda agreed to the proposed settlement, Prudence was not. She pointed out that the settlement would preclude her from bringing any further action against either Snapper Creek or Comprehensive, even if she could show negligence in the care of Montañez or the supervision of his guardian and conservator. The Florida court overruled her objections, and approved the settlement. It also authorized payment of $43,750 in attorney’s fees to Comprehensive.

At the same time, Ray alleged that she was entitled to a share of the estate as Montañez’ surviving spouse. Over the objections of Prudence, the trial court awarded her the widow’s share of the estate.

On appeal, the Florida Court of Appeals reversed. Noting that Comprehensive was not even qualified to serve as Personal Representative under Florida law, the Court of Appeals also saw an inherent conflict of interest in the settlement. Noting that “the Decedent’s death from septicemia and grossly infected bedsores raises the possibility that viable negligence and malpractice actions may exist by the estate against both Comprehensive and Snapper Creek,” the Court voided the settlement and ordered the appointment of a new Personal Representative.

The appellate court also observed that the Personal Representative of an estate has a duty to heirs and creditors not to settle litigation to the disadvantage of the estate. More fundamentally, the Personal Representative in this case (as a potential defendant) had a conflict of interest which made it impossible to settle the litigation fairly. In addition to voiding the settlement, the Court reversed the award of attorney’s fees.

On the subject of Ray’s right to a widow’s share, the Court of Appeals found that her subsequent remarriage (and divorce) barred her from making any claim. The opinion noted that when she remarried in 1971, she claimed on her marriage application that she had divorced Montañez in 1965, and she could not now claim otherwise. Estate of Montañez, Fla. Ct. of Appeals, February 12, 1997.

New Will, Signed While Dying In Hospital, Ruled Invalid


Grace Gillespie may have seemed to be a lucky woman. After all, she had won $2,000,000 in the lottery. In 1992, however, she was admitted to a Phoenix-area hospital for treatment of pneumonia and lung cancer; doctors quickly determined that her condition was terminal.

Ms. Gillespie had previously signed a Will leaving her estate in equal shares to her three children and her mother. The one-quarter share set aside for her mother would be distributed, upon her death, to Ms. Gillespie’s nieces and nephews. Ms. Gillespie had also executed a durable power of attorney the year before, giving her son James authority to handle her affairs.

As Ms. Gillespie lay dying in her hospital bed, James arranged for his own lawyers to prepare a new Will and power of attorney for his mother’s signature. Six days before her death, he presented them to her at her bedside, telling her that the power of attorney would allow him to continue to pay her bills and feed her pet cockatiel. The Will, he told her, would divide her estate into three equal shares, one for each of her children.

In fact, the Will prepared by James’ lawyers left most of Ms. Gillespie’s estate to a trust established by James. Furthermore, the Will forgave part of a debt owed by James’ company to Ms. Gillespie and left her Lexus to her daughter; the distribution was not equal, as Ms. Gillespie had been told. The trust kept her daughter’s share in trust, with James as trustee. The same day, James changed the beneficiary on Ms. Gillespie’s lottery winnings from the three children to the trust he had created.

On the day of Ms. Gillespie’s death, James amended the trust so that her other son’s share would also remain in the trust after her death.

Ms. Gillespie had not asked for a new Will to be prepared. At the time of her signature, she was sedated and on a ventilator, and could only nod her agreement to her son’s description of the new Will. Her signature demonstrated her diminished physical capacity.

The Arizona Supreme Court reviewed the estate plan prepared by James, and determined that it was not Ms. Gillespie’s plan. Although Wills may normally be challenged only when the signer is incapacitated, or when the signature is the product of undue influence, the Court in this case ruled that Ms. Gillespie’s signature was simply invalid. Since she had not read the documents nor had them read to her, and since James misrepresented their terms to her, the Court ruled that she had not effectively signed the Will. Thus, the Court sidestepped the issue of Ms. Gillespie’s capacity and simply determined that the document was James’ will, not Ms. Gillespie’s Will. Estate of Gillespie, Arizona Supreme Court, September 14, 1995.

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