Parol Evidence Can Help Determine the Truth

Consider a situation where an elderly relative, your father (although it could be your mother, an aunt or an uncle), who had retired and moved from Ohio to Florida, has passed away. You know your father had a will and a trust, but in working to wind up his affairs you unexpectedly learn there was also a joint bank account in the name of your father and someone you do not know.  The unknown person could be a Florida friend or neighbor of your father, but because neither this person nor the account was ever mentioned in family conversations, you’re suspicious. 

Upon checking with the bank you find that all proper procedures were followed when the joint account was set up. The signature cards are in order, and the person you never met was given right of survivorship in the account.  Yet from the large amount of money on the last bank statement, you are sure that your father had said he intended these funds to be placed in the trust upon his death, so they could be used to care for your mentally disabled sister.  The branch manager at the bank where the account was opened remembered a similar comment.

You strongly believe that the other person named on the account either ignored your father’s wishes or exercised what is legally called undue influence that somehow tricked or coerced your father into opening the joint account. Yet when you talk to your lawyer in Ohio and the bank in Florida, both say you can do nothing about the joint account.  The signature card says what it says, the funds are going to bypass the trust, and the joint account with survivorship will not go through probate. All you have is what your father said to you about funding the trust – and that looks like it’s not enough.

Or is it? Actually, under Florida law, your father’s expressed intention about funding the trust carries legal weight.  Florida Statute section 655.79, which covers the vesting of bank accounts in two or more names when one of the named persons dies, does say that, unless expressly provided otherwise, an account with a valid signature card passes to the other person.  But it adds that this presumption of a valid account “may be overcome only by proof of fraud or undue influence or clear and convincing proof of a contrary intent.”

What is your proof in this instance? First, that your father actually created the trust for your sister. And second, he told you it would be funded after he died – funded with money that appears to be in the joint bank account.  Your father’s statements to you and the branch manager may be what is termed parol evidence (note the different spelling from “parole”). Generally speaking, parol evidence is a verbal communication made prior to or upon the execution of a written contract.  Florida courts often do not accept parol evidence, but in a 2004 case a state appeals court held that under section 655.79 parol evidence was relevant to the disposition of a joint bank account.[1]

What this means is that you now have the opportunity to send a demand letter or initiate litigation in Florida to determine the truth behind and the best disposition of the joint bank account.  It may be that undue influence led to its creation; it may be that the other account holder simply didn’t know your father’s intentions.  Either way, by engaging a Florida attorney who understands the application of parol evidence to section 655.79, you will have a course of action that many banks and other lawyers might not realize exists.

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Event Start Date: 02/24/2012 1:30 pm

Event End Date: 02/24/2012 6:00 pm

Locations: Polk State College Fine Arts Theatre

Address: 999 Avenue H Ne Winter Haven, FL , UNITED STATES (map)

There is a huge buzz in Polk County with the opening of LEGOLAND Florida but there’s much more to the story. ULI is pleased to invite you to a workshop that will be both informative and fun. They have gathered an all-star lineup to talk about the latest trends and how it will affect the super-region from Tampa to Orlando and beyond.

The day begins at the Polk State College Fine Arts Theatre in Winter Haven for presentations and concludes with a tour and reception at LEGOLAND. This is a unique opportunity to connect with key business leaders from across the region so please register today!

Confirmed Speakers/Panelists:

• Jeff Chamberlain, Vice President of Real Estate, Publix
• Steve Crosby, President, CSX Real Property, Inc.
• Commissioner Todd Danzler, Polk County Board of County Commissioners
• Adrian Jones, General Manager, LEGOLAND Florida
• Jerry Miller, President, Central Florida Development Council
• Gary Ralston, CRE, Coldwell Banker Commercial Saunders, Ralston, Danzler Realty

Event Schedule:

1:30-2:00 pm Check-in and Registration (Polk State College Fine Arts Theatre)

2:00-4:10 pm Presentation

4:10-4:30 pm Travel from Polk State College to LEGOLAND Florida

4:30-6:00 pm LEGOLAND

Reception Host Sponsor: LEGOLAND Florida

Presenting Sponsors: Saunders Ralston Danzler Commercial Realty  and the University of Central Florida Metro Center

Supporting Sponsor: Dean Mead

To register for this program, go to: https://netforum.uli.org/eweb/DynamicPage.aspx?site=ULIMC&webcode=DCouncilEventInfo&Reg_evt_key=06b18d16-725c-497f-86ca-67e127e984b6&RegPath=EventRegFees

All three attorneys have many years of experience in a variety of leadership roles within the Firm and in their communities. Mr. Gravenmier is the Chair of the Firm’s Real Estate department. Mr. Ahearn is a Board member of the Central Florida Estate Planning Council and the Orlando Ballet. Ms. Rezanka is the Chair of the Firm’s Real Estate Development Industry Team and she also serves on the Board and Executive Committee of the Home Builders and Contractors Association of Brevard County.

To learn more about the professional background and experience these attorneys bring to their leadership roles, please see below:

Matthew J. Ahearn

Shareholder
Office: Orlando

Mr. Ahearn is Board Certified in both Wills, Trusts & Estates and Tax Law by The Florida Bar Board of Legal Specialization. He has extensive experience in the areas of estate and business succession planning, asset protection planning, charitable planning and planning to minimize or avoid wealth transfer taxes. Mr. Ahearn handles all aspects of probate and trust administrations, including estate and gift tax audits before the Internal Revenue Service. He represents both beneficiaries and fiduciaries in contested matters.

Stanley A. Gravenmier

Shareholder
Office: Orlando

Mr. Gravenmier is the Chair of the firm’s Real Estate Department. He focuses his practice on commercial loan transactions, real estate development, financing and leasing. In addition, he has extensive experience in the areas of Florida documentary stamp taxes and intangible taxes incurred in connection with conveying and mortgaging real estate.

Kimberly B. Rezanka

Shareholder
Office: Viera / Melbourne

Ms. Rezanka represents business entities and individuals in matters involving contracts and in matters concerning governmental activities. In matters involving contracts, Ms. Rezanka handles matters ranging from simple breach of contract actions to complex cases involving fraud, theft and tortious interference with contracts. In matters involving governmental activities, Ms. Rezanka manages issues involving land use, zoning, code violations and administrative hearings. Ms. Rezanka has extensive courtroom experience, including jury and non-jury trials and appellate hearings.

Ms. Rezanka is the current Chair of the firm’s Real Estate Development Industry Team. She also serves as legal counsel to and on the Board of Directors and the Executive Committee of the Home Builders & Contractors Association of Brevard. Additionally, she has volunteered in several leadership positions and served on multiple boards for civic, professional and philanthropic organizations including: Junior League of South Brevard, LEAD Brevard, Brevard County Bar Association, Economic Development Commission of the Space Coast, and the University of Florida National Alumni Association.

Mr. Looney co-authored the treatise with Mr. Richard B. Robinson and Mr. Ronald Levitt.

To see a more detailed description of Tax Planning for S Corporations, Second Edition., please click on the link below that will take you to the LexisNexis bookstore. http://www.lexisnexis.com/store/catalog/booktemplate/productdetail.jsp?pageName=relatedProducts&skuId=SKU10461&catId=115&prodId=10461

Mr. Looney is the Chair of Dean Mead’s Tax Department. He represents clients in a variety of business and tax matters including entity formation (S and C corporations, partnerships, and LLCs), acquisitions, dispositions, redemptions, liquidations, reorganizations, tax-free exchanges of real estate and tax controversies. His clients include closely held businesses, with an emphasis on medical and other professional practices. He is a former Chair of the S Corporations Committee of the American Bar Association’s Tax Section. He is Board Certified in Tax Law by the Florida Bar, as well as being a Certified Public Accountant (CPA).

Orlando, Florida — Dean Mead announced today that A. Felipe Guerrero has been elected to serve as the 2012 President of the Hispanic Bar Association of Central Florida (HBACF) Board of Directors. He was installed on January 21, 2012 at the organization’s 21^st anniversary celebration dinner at The Contemporary in Walt Disney World Resort.

Guerrero is an Associate in the Orlando office of Dean Mead. His practice focuses on real property litigation, commercial litigation, creditors’ rights and landlord/tenant litigation. He graduated from the University of Florida Levin College of Law, with honors, in 2005. He received his undergraduate degree with honors in Political Science with a minor in Spanish from the University of Central Florida in 2001.

Guerrero has been actively involved with the Hispanic Bar Association of Central Florida since 2007.  He is also a member of the Orange County Bar Association, the University of Florida Law Alumni Council, the Florida Bar, and he’s a graduate of Leadership Orlando.

“The HBACF is a budding rose that is ready to bloom”, said Guerrero. He added, “One of our main objectives is to significantly increase the size of our membership while adding value and purpose to it through the unique programs and initiatives that we have planned throughout the year”.

The Hispanic Bar Association of Central Florida, Inc. (HBACF) is a non-profit organization that was incorporated on September 3, 1991.  The role of the HBACF is to provide professional services to their local members who seek assistance on issues that affect the Hispanic Community. Ultimately, the Hispanic Bar Association of Central Florida works diligently to bring about a better understanding and confidence in their legal system for everyone.

 About Dean Mead:

Dean Mead provides full-service legal representation to businesses and individuals throughout Florida. The firm has 45 attorneys practicing in multiple practice areas including: tax, estate and succession planning, corporate, agribusiness, healthcare, real estate, general commercial litigation, employee benefits, bankruptcy and creditors’ rights. The firm’s offices are located in Orlando, Fort Pierce, Gainesville and Viera.  For more information, please visit http://www.deanmead.com.

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For more information about the Harbor Branch Oceanographic Institute Foundation and the Love Your Lagoon events, please go to: http://www.hboifoundation.org/lagoon.html.

As part of President Obama’s America’s Great Outdoors initiative, Secretary of the Interior Ken Salazar today accepted a 10-acre donation of land in south-central Florida to officially establish the Everglades Headwaters National Wildlife Refuge and Conservation Area, conserving one of the last remaining grassland and longleaf pine savanna landscapes in eastern North America.

The land, donated by The Nature Conservancy, is part of the Hatchineha Ranch south of Kissimmee and provides valuable habitat for a wide variety of wildlife including bald eagles, swallow-tailed kites and gopher tortoises.

“The Everglades Headwaters National Wildlife Refuge and Conservation Area is an example of the 21st century approach to conservation envisioned by President Obama when he unveiled his America’s Great Outdoors initiative last year,” Salazar said. “Working in close partnership with landowners, we are bolstering ongoing efforts to conserve the Everglades in the Kissimmee Valley, while ensuring the area’s ranching and farming heritage remains strong.”

The new refuge and conservation area is the 556^th unit of the National Wildlife Refuge System managed by the U.S. Fish and Wildlife Service.

If fully realized, the refuge and conservation area will span 150,000 acres north of Lake Okeechobee. Two-thirds of the acreage, or 100,000 acres, will be protected through conservation easements purchased from willing sellers. With easements, private landowners would retain ownership of their land, as well as the right to work the land to raise cattle or crops. The easements would ensure the land could not be developed.

The Service is working closely with ranchers and other private landowners, the Florida Fish and Wildlife Conservation Commission and other state agencies, conservation organizations, users’groups, Native American Tribes and federal agencies in the creation of the new refuge and conservation area.

“The refuge and conservation area supports the Fish and Wildlife Service’s emphasis on strategic habitat conservation at a landscape level by building on the large number of ongoing conservation efforts in the Kissimmee River Valley,” Service Director Dan Ashe said. “One of the criteria to consider for all acquisitions, whether through easements or purchase of fee title, is whether the acquisition will connect existing conservation lands and create habitat corridors for plants and animals.”

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For more information:

EvergladesHeadwaters@fws.gov
http://www.fws.gov/southeast/evergladesheadwaters/
Charlie Pelizza, Refuge Manager, 772.581.5557

Dean Mead’s Agribusiness Industry Team continues to monitor developments relating to the establishment of, and acquisition of land and easements for, the NWR.  If you have questions, please contact Dean Mead shareholder, Dennis G. Corrick, at dcorrick@deanmead.com.   We also invite you to learn more about Dean Mead’s Agribusiness Industry Team at http://www.deanmead.com/industries/agribusiness/.

Join us as we examine a number of scenarios for loan workouts and debt restructuring in order to highlight the possible tax consequences and other ramifications of such workouts and restructuring, with emphasis on what may be unforeseen results and costs. Planning opportunities to overcome those results and costs will be discussed.

Friday, February 3, 2012

11:30 a.m. – 12:00 p.m. for Registration and Lunch

12:oo – 1:15 p.m. for Program

Location: Imperial Plaza, 6767 N. Wickham Road, Suite 400, Melbourne, FL  32940

Kindly RSVP to reply@deanmead.com

For questions, please contact Charisse Worrell at 407-841-1200

Professional and Civic Activities
• The Florida Bar
• St. Lucie County Bar Association
• The Treasure Coast Builder’s Association
• Martin County Chamber of Commerce
• St. Lucie County Chamber of Commerce

Education
Juris Doctorate, University of Florida Levin College of Law, Gainesville, Florida, with honors, 1998

Undergraduate Degree, University of South Florida, Tampa, Florida, summa cum laude, 1995

Bar Admissions
• Florida
• U.S. District Court Middle District of Florida
• U.S. District Court Southern District of Florida
• Bankruptcy Court for the Southern District of Florida

Recognition and Awards
Graduate of the St. Lucie County Leadership Program, 2009