Cohen v. Guardianship of Cohen
896 So. 2d 950, 2005 WL 545126 (2005)
Rule of Law:
Provisions in a will regarding the disposition of a testator's body are not conclusive and may be disregarded if there is clear and convincing evidence that the testator subsequently changed their mind regarding such disposition.
Facts:
- Hilliard and Margaret Cohen were married for forty years and had four children; Hilliard was Jewish and Margaret was not.
- The Cohen family had a family plot in Mount Hebron Cemetery, a Jewish cemetery in New York, where Hilliard's family and their spouses were buried, but Margaret, as a non-Jew, could not be buried in the restricted Jewish area of this plot.
- In 1992, Hilliard executed a will in New York directing a 'traditional Jewish burial in our family plot in Mount Hebron Cemetery, Flushing, Queens, N.Y.' and appointed his brother, Ivan Cohen, as executor.
- In 1998, Hilliard and Margaret moved from New York to Florida.
- Around 1999, Hilliard initially told Margaret he wanted to be buried in his family plot with her, but in May 2001, he and Margaret first discussed being buried together in Florida.
- While Hilliard was undergoing incapacity proceedings, he told his attorney ad litem that he wished to be buried in Florida with his wife.
- A physician who examined Hilliard testified that Hilliard expressed a sentiment that he wished to be buried in Florida with his wife.
- Hilliard's daughter testified that he had expressed a desire to be buried with his wife in Florida.
Procedural Posture:
- Margaret Cohen filed a petition to determine Hilliard Cohen's incapacity and a subsequent petition for appointment of a guardian.
- Ivan Cohen also filed a petition to be appointed Hilliard's guardian, based upon a durable power-of-attorney.
- Hilliard Cohen died while both guardianship petitions were pending.
- Ivan Cohen sought a court order in the probate court to enforce the burial provisions of Hilliard's 1992 will.
- The trial court (probate court) held two evidentiary hearings regarding the disposition and burial of Hilliard.
- The trial court determined that Hilliard's true intent was to be buried alongside Margaret and ordered Hilliard to be buried in a Florida cemetery, rather than the New York family plot specified in his will.
- Ivan Cohen and Cressie Carlyle, Hilliard's brother and sister, appealed the probate court's order to the District Court of Appeal of Florida, Fourth District.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
May a court disregard testamentary burial instructions contained in a will when clear and convincing evidence demonstrates that the testator subsequently expressed a different desire for the disposition of their body?
Opinions:
Majority - WARNER, J.
Yes, a court may disregard testamentary burial instructions contained in a will when clear and convincing evidence demonstrates that the testator subsequently expressed a different desire for the disposition of their body. The court adopted the majority view that provisions in a will regarding burial instructions are not conclusive of a testator's intent, as a dead body is not considered 'property' in the same way other assets are for testamentary purposes (citing common law and § 732.6005(2), Fla. Stat.). Therefore, directions for body disposition are personal rights that can be informally altered, unlike the formal requirements for revoking property dispositions in a will. The court referenced decisions from other states, such as Nelson v. Schoonover and In re Scheck's Estate, which supported the idea that subsequent oral statements or changes in circumstances could override formal will provisions concerning burial. The court reasoned that requiring strict adherence to potentially outdated will provisions could lead to 'untoward results' in a mobile society, such as separating a spouse from their family or preventing a burial consistent with the testator's latest wishes. In this case, the trial court found Hilliard's true intent was to be buried alongside Margaret in Florida, a finding supported by competent, substantial evidence, including testimony from his wife, daughter, and even a physician. This evidence met the 'clear and convincing evidence' standard required to override an express term of the will regarding body disposition. Furthermore, the will's provision itself was considered ambiguous because it called for a 'traditional Jewish burial' in a plot where his non-Jewish wife could not be buried with him, contrary to his later expressed desire to be buried with Margaret. Justices Polen and Hazouri concurred.
Analysis:
This case establishes a significant precedent in Florida by clarifying that testamentary burial instructions are not absolute and can be overcome by clear and convincing evidence of a testator's subsequent change of intent. It highlights the distinction between the disposition of property, which requires formal testamentary documents, and the disposition of a body, which is treated as a more personal right subject to informal alteration. This ruling provides courts with the flexibility to honor a decedent's true, latest wishes, particularly in an increasingly mobile society where circumstances and relationships can change significantly over time, rendering old will provisions inconsistent with current desires. However, it places a substantial evidentiary burden on those seeking to vary the will's terms, requiring 'clear and convincing' proof of changed intent, thereby protecting against frivolous claims.
