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Wright,
Ponsoldt & Lozeau,
Trial Attorneys, L.L.P.
1000 SE Monterey Commons Blvd., Suite 208
Stuart, Florida 34996
772-286-5566
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Updated: Jun 19th, 2002 - 17:37:44
WPL, In the News
Stuart News/Port St. Lucie News (FL)
February 5, 2002
Section: Local
Edition: Martin County
Page: C1
NIECE RETURNS TO COURT, DEFENDS CHALLENGED WILL
Melissa E. Holsman staff writer
STUART - The Jensen Beach woman who last month lost a legal effort to have herself adopted by her dead uncle was back in court Monday, disputing allegations by the man's relatives she unduly influenced him to change his will before he died.
In January, a Martin County judge ruled that when Joseph DiPace, 89, died Nov. 18, 2000, the proceedings he'd started to adopt Shirley DiPace, 58, his niece through marriage, should have ended "because dead people can't adopt."
But that didn't end a lawsuit filed in Martin County Circuit court by several of Joseph DiPace's out-of-state relatives who have contested changes he made to his will, which left Shirley DiPace as the trustee and beneficiary of the bulk of his estate, worth about $600,000.
The lawsuit alleges, in part, that DiPace exerted "undue influence" over Joseph DiPace in convincing him to change his will and then improperly converted the funds to her own use. Joseph DiPace was a retired Union Carbide executive who lived in Jensen Beach.
The suit argues that changes made to DiPace's trust before his death were invalid because he was "feeble minded" and "was not of sufficient mental capacity to understand the ramifications of his actions."
Shirley DiPace's attorneys Kenneth Scherer and M. Krista Barth, of Palm Beach Gardens, have denied the allegations Joseph DiPace was "feeble minded."
They were in court Monday seeking a summary judgment in the case, arguing the relatives lacked evidence to prove diminished mental capacity.
"The fact of the matter, judge, he knew what he was doing and was anything but feeble minded," Scherer told Circuit Judge Ben Bryan. "We have a lot of allegations about his mental capacity that if this man was alive, would be slanderous."
Stuart attorney William Ponsoldt, hired in February 2001 by eight of Joseph DiPace's relatives, countered Scherer's argument by quoting from an affidavit taken by William Freshwater, DiPace's former accountant and friend, who allegedly spoke to him in September 2000.
"'He sounded out of it, like he didn't know what he was doing and didn't recognize the sound of my voice,'" Ponsoldt told the court, concluding: "I think that indicates he didn't know what he was doing."
"It is clear with Mr. Freshwater's affidavit that he was concerned about what was going on in Mr. DiPace's mind," Ponsoldt added.
Bryan ruled the issue of DiPace's mental state should be considered at trial, which is scheduled to begin in March or April.
At trial, both sides are expected to produce statements from doctors and friends, but with contradictory opinions about DiPace's mental state before he died.
Ponsoldt has maintained that after DiPace was diagnosed with dementia, Shirley DiPace influenced him to change his will. Barth, however, has insisted DiPace, prior to his death, was regularly investing in the stock market and reading The Wall Street Journal every day.
©
Copyright 2002 WPL Trial Attorneys L.L.P.
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