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Gay Man’s Last Will Upheld by Florida Court of Appeal

by Kilian Melloy
Friday Jun 8, 2007
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A Florida Court of Appeals judge has ruled that the final will of a dying AIDS patient, in which a neighbor was named as beneficiary, is valid and takes precedence over an earlier will that left the man’s assets to a priest.

Jorge Mesa had named Catholic priest Father Francisco Gerardo Diaz as the beneficiary of his last will and testament following the death, in July 1999, of Mesa’s partner Silvio Segarra, according to a story posted by GayCityNews.com yesterday. But Mesa changed his will shortly before his death in July 2003, leaving his home to neighbor Frank Ashworth. Diaz subsequently challenged the will, saying that Ashworth and his wife exerted undue influence over Mesa at a time when he was not capable of making such legal decisions. Mesa changed his will three weeks before his death, after being driven to his attorney’s office by Ashworth and his wife, Cecelia, where Mrs. Ashworth and an office secretary served as witnesses to the new will.

Circuit Judge Herbert Stettin of Florida’s 3rd District Court of Appeal ruled in Ashworth’s favor after hearing testimony from Mesa’s doctor that Mesa had been enough in possession of his faculties to check himself out of a nursing center and opt for at-home hospice care. Stettin did note, however, that under Florida precedent, the fact that the Ashworths had taken such an active role in the will’s change amounted to "a presumption of undue influence was established by the evidence," although Stettin concluded that this did not amount to an abuse on the part of the Ashworths.

GayCityNews.com traced the story behind the case, starting when Mesa and Segarra sought solace and counsel from Father Diaz. According to the court, Diaz "became more involved in Mesa’s life" following Seagram’s death. Diaz undertook some caretaking duties for Mesa, getting him to doctors’ appointments, seeing to his expenses, and doing some of his shopping for him. At the end of 1999, as a Christmas present, Mesa named Diaz as beneficiary in his will.

When Mesa and Diaz’s relationship "subsequently cooled," the Ashworths and other neighbors began looking after Mesa, who went to hospital--and then to the nursing center--in "an advanced state" of illness in June of 2003. During a visit from Cecilia Ashworth at the nursing center on July 9, Mesa told her that he wanted to draw up a new will and make her husband Frank his beneficiary. Mesa checked himself out of the nursing center the next day, and the Ashworths took him to his doctor. According to Mesa’s doctor, Mesa was near death at that time, but wanted to have hospice care at home.

After the visit to Mesa’s doctor, the Ashworths took Mesa to a lawyer’s office where the new will was prepared, according to the GayCityNews.com story. The secretary who served as witness testified in court that Mesa was lucid, with "his wits about him."

In ruling against Diaz, Stettin said that a person’s will should be honored "whenever possible," and noted that the burden of proof is on challengers to a will.

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor, writing about film, theater, food and drink, and travel, as well as contributing a column. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.

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