Jacksonville Business Journal – by Kimberly Morrison, kmorrison@bizjournals.com | 265-2218

The likelihood that you or your family members will end up in court squabbling over your deceased mother’s jewelry or dad’s lake house is on the rise, legal officials say.

Courtroom showdowns over wills and estates, formally referred to as probate litigation, are increasingly replacing once-private family affairs. There are also signs that misconduct involving family fortunes frequently go undetected, and may be more widespread than case counts would indicate.

Most jurisdictions in recent years have created dedicated courts to handle the volume increase, including Duval County. Peter Dearing, in 2006, became Duval County’s dedicated probate judge, and said the case load already warrants a second.

“When we set up this division, we had 6,000 pending cases at any given moment, which I’m sure is far more than any other circuit court division,” Dearing said. “We’ve been at full capacity since the day we opened.”

Dearing said his court receives more than 3,000 new cases every year, and there has been enough demand for attorneys who handle wills, trusts and estates that he’s seeing more general attorneys turn up in his court rather than those specialized in probate law.

How families arrive at probate court runs the gamut from disagreements among heirs about the deceased person’s intent to children helping themselves to a parent’s bank account. Fraud, undue influence by family members and trusted others and abuse of powers of attorney and guardianship are all reasons to challenge a will, and can sometimes have little to do with the dollar value of the assets involved.

But having large estates can certainly increase the likelihood for problems to arise.

The larger net worth of an aging baby boomer population and diminished cognitive abilities make them prime targets for financial abuse, which is estimated to rob the elderly of $2.6 billion each year, according to a study Metlife Mature Market Institute published earlier this year.

The case of New York philanthropist and socialite Brooke Astor and her $200 million fortune was a prime example of what experts think is becoming increasingly pervasive. A jury last month convicted Astor’s son, Anthony Marshall, of defrauding and conspiring to change his mother’s will after she was diagnosed with Alzheimer’s disease. Co-defendant and estate lawyer Francis Morrisey Jr. was also convicted on several counts, including forgery and scheming to defraud Astor.

“As more people are living long enough to suffer dementia, there will be more and more contest about whether a will is executed at a time when a person was in capacity to do so,” said John Callender, a Jacksonville attorney specializing in estate and trust litigation.

But in the absence of greed are other factors driving the phenomenon: Americans are no longer courtroom shy, family units have become more complex and dysfunctional and attitudes towards inheritance have shifted from gratitude to entitlement.

“I think we’re just a more litigious society than we were 50 years ago,” said John Lawlor, an attorney at Fisher, Tousey, Leas & Ball PC who specializes in estate planning, probate and elder law. “If you feel like you are getting shortchanged, it’s perfectly acceptable to pursue litigation and remedy what you see as an inequality or injustice.

“It used to be considered bad manners to sue somebody, but its not bad manners anymore. There’s a coarseness to our society, so you do see more litigation in the areas of estate and trust.”

Court battles over family fortunes can get contentious because the cases are both emotionally charged and particularly tough to prosecute.

The victim in cases of fraud is rarely alive, and if he or she is alive, can be too physically or mentally impaired to make a persuasive witness. Recognizing misconduct then tends to fall on heirs or surviving family members who may not be astute or discerning enough to uncover it.

Once the cases make it to court, they are often complex and challenging to try.

Dearing said the recession has added another layer of complexity to probate cases because they often require the sale of property, and the housing market collapse has delayed those sales and ultimately, the closure of many cases.

While there is no such thing as a bulletproof will and Florida does not recognize “no contest” clauses in wills, there are ways to reduce the chance for problems to arise.

Staying alive for a long time after creating a will can cut down a successful challenge to a person’s mental capacity at the time it was executed, so lawyers advise creating a will early in life and revising it when financial or familial status has changed. And, of course, it is important to get a good attorney.

“The wills that are most difficult to overturn are those prepared by a reputable attorney,” Callender said.

For other family members, heirs or caretakers, recognizing situations that could result in misconduct is also important. Elderly women are most often the victims of financial abuse, and in all cases, an adult child is the most likely to be the perpetrator.