Florida Probate & Trust Litigation Blog

Florida Probate & Trust Litigation Blog

By Juan C. Antúnez of Stokes McMillan Antúnez P.A.

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4th DCA: Is a spousal undue influence claim impossible under Florida law?

Posted in Will and Trust Contests

Blinn v. Carlman, — So.3d —-, 2015 WL 1223665 (Fla. 4th DCA March 18, 2015) (trial-court order)

manipulation

4th DCA: “When a will is challenged on the grounds of undue influence, the influence must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator. The doctrine of undue influence is based on the theory that the testator is induced by various means, to execute an instrument which, although his, in outward form, is in reality not his will, but the will of another person which is substituted for that of testator.”

Who bears the burden of proof is often a decisive factor in will contests. Why? Because your single most important witness — the testator — is dead (think: “worst evidence rule”), which means we have to litigate these cases based solely on circumstantial evidence. This problem is especially acute in undue influence cases, which is why F.S. 733.107(2) permanently shifts the burden of proof in these cases once the “presumption” of undue influence is triggered (see here). In 1971 the Florida Supreme Court told us in In re: Estate of Carpenter,253 So.2d 697 (Fla.1971), that a presumption of undue influence gets triggered if the contestant proves: (1) the existence of a confidential relationship between the testator and the will’s proponent; and (2) active procurement of the contested will by the will’s proponent.

What about spousal undue influence cases?

But what if you’re barred as a matter of law from ever triggering the presumption of undue influence in your case? For example, under Florida law a wife’s confidential relationship with her husband can’t be used against her to prove undue influence, which means you’re never going to trigger the presumption in one of these cases. There’s a common sense reason for this rule: in its absence every will benefiting a spouse could potentially be challenged on undue influence grounds. Here’s how the 3d DCA explained this rule in Tarsagian v. Watt, 402 So.2d 471 (Fla. 3d DCA 1981):

The holding of Goertner v. Gardiner, 125 Fla. 477, 170 So. 112, reh. den., 126 Fla. 412, 170 So. 844 (1936), that the confidential relationship which exists between a husband and wife is not one which may be considered in the law governing will contests, accord, In re Estate of Knight, 108 So.2d 629 (Fla. 1st DCA 1959), is, in our view, still extant. Since a confidential relationship is one necessary requirement which must be met before a presumption of undue influence arises, under Goertner the presumption cannot arise in the case of a husband and wife. Were the confidential relationship between spouses not exempted from that presumption of undue influence rule, the presumption would arise in nearly every case in which the spouse is a substantial beneficiary, since the required active procurement would almost always be present. One would naturally expect to find a spouse to be present at the execution of the will, present when the testator expresses a desire to make a will, knowledgeable about the contents of the will prior to its execution, involved in its safekeeping, and perhaps even involved in the recommendation of an attorney-preparer and consultation with an attorney-preparer. These, of course, are among the criteria for determining if one is engaged in active procurement.

So are spousal undue influence claims impossible under Florida law? No, you just can’t rely on F.S. 733.107(2) to win your case by shifting the burden of proof.

Case Study:

In this case a will favoring a man’s fourth wife was challenged on undue influence grounds by his daughter from a prior marriage. In August 2007 Richard Blinn married his fourth wife shortly before turning 82. In 2008 Mr. Blinn signed a new will disinheriting his daughter and leaving everything to his new wife. He died in 2012.

The decedent suffered from “numerous and serious” physical infirmities that continued until his death, as well as suffering from “progressive dementia,” which worsened over time. This kind of evidence is important not because it proves lack of capacity, but because it’s powerful circumstantial evidence of the testator’s heightened vulnerability to being unduly influenced. Here’s how the 4th DCA made this point:

As the trial court found, the decedent was “susceptible to undue influence due to his declining physical state, anxiety disorders, depression, and progressive dementia.” See Hack v. Estate of Helling, 811 So.2d 822, 826 (Fla. 5th DCA 2002) (stating that a testator’s “failed mental capacity … is a factor which should be considered, as supporting the undue influence claim.”); In re Perez’ Estate, 206 So.2d 58, 59 (Fla. 3d DCA 1968) (“It is true … that the amount of undue influence need not be great where a testator is weak and his intellect clouded.”).

This kind of evidence is necessary, but not sufficient to take one of these cases on. You also need to see evidence of an abrupt — and unexplained — change in the testator’s estate plan, which is exactly what happened here:

The 2008 will completely transformed Richard’s prior estate plan. In a 2006 will executed eight months after he met appellant, Richard devised the entire estate outright to his daughter, Patty, with his granddaughter as the alternate beneficiary. This will was consistent with an earlier will which provided for Richard’s family. Prior to meeting appellant, Richard financially assisted his children. However, the 2008 will devised the entire estate to appellant, with an existing charity created by Richard as the alternate beneficiary. Four months after the execution of the 2008 will, the charity was dissolved and all of its assets were distributed to a New Hampshire beneficiary.

OK, so far the facts look bad for fourth wife, but not fatal. In my opinion what ultimately tipped the scales against new wife’s 2008 will is the kind of “smoking gun” you should always look for before taking one of these cases on. As stated by the court, new wife gave us all a “rare” glimpse “into an abusive marital relationship” when she inadvertently left a long, self-damning voice recording of herself falsely accusing the decedent’s daughter of “stealing” from him and telling him his daughter was no “GD” good. Here’s how the 4th DCA described this evidence:

A significant insight into the dynamics of the marital relationship occurred when appellant inadvertently left a message on a cell phone of a former employee of Sovereign Yachts. She had dialed the number and forgot to hang up before she started in on Richard. On the voicemail, appellant was screaming at Richard that,

Patty was still running the company, that she was—and that she was still running the company, she’s lying to him, “She’s no GD good, I told you so, I told you she’s no GD good, she’s just taking your money doing stuff behind your back, she’s not telling you about this.”

At the beginning of the message appellant said, “[s]ee, Richard, I told you the number is still working. I told you she is stealing from you. She’s running the company and not telling you about it.” Although appellant claimed that it was Richard’s belief that Patty was stealing from him, it is clear that it was appellant who aggressively pushed this idea, without any evidence of Patty’s wrongdoing. It is rare in a case like this to have such a glimpse into an abusive marital relationship.

And if that wasn’t bad enough, in 2011, while the decedent was hospitalized and diagnosed with “severe dementia”:

[A]ppellant contacted the drafting lawyer’s law firm to send her estate planning documents for Richard and a durable power of attorney in favor of appellant; she said she would have the documents signed, witnessed, and notarized. The law firm complied with appellant’s request. The trial judge found that if appellant were “so bold as to openly display such influence over [the decedent],” then the court could “reasonably infer that similar or greater influence was occurring in the dark during their marriage.”

Lesson learned?

The general rule is that courts will bend over backwards to enforce wills, no matter how suspicious the circumstances might be or how “unfair” the outcome might seem — especially in cases involving wills favoring a spouse. This case is the exception. And it’s an example of how bad the facts have to be to win a spousal undue influence case. You don’t see this kind of self-incriminating evidence very often. But when you do, your client does have a viable cause of action.

Interview with a Probate Lawyer: Richard L. Pearse, Jr.

Posted in Interview with a Probate Lawyer
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Richard L. Pearse, Jr. of Pearse & Stinson, P.A. in Clearwater, Florida, was on the winning side of Kemp & Associates, Inc. v. Chisholm, a case involving a failed attempt to invalidate a Texas adoption in order to win a Florida estate case.

Richard L. Pearse, Jr. of Pearse & Stinson, P.A. in Clearwater, Florida, was on the winning side of Kemp & Associates, Inc. v. Chisholm, an interesting 5th DCA opinion I wrote about here involving a woman’s failed attempt to invalidate her own Texas adoption in order to win a Florida estate case.

I invited Richard to share some of the insights he drew from this case with the rest of us and he graciously accepted.

1.  What strategic decisions did you make in this case that were particularly outcome determinative at the trial-court level? On appeal?

The appellee in this case argued that she was the decedent’s sole heir because she was his biological daughter.  She sought to avoid the effect of her 1961 Texas adoption on the basis that the decedent had no notice of the adoption proceedings, successfully arguing to the trial court that the resulting adoption decree was not issued pursuant to due process and thus not entitled to recognition in the Florida probate administration.  Initially, we argued that the appellee had no standing to raise these issues because the right to assert the due process violations belonged to the decedent and could only have been asserted by him.  We also argued that she had presented no objective proof, such as DNA, that the decedent was her biological father and that, under Texas law, notice to the decedent was not required.  These arguments did not persuade the trial court, who ruled that the appellee had sufficient standing, had been acknowledged by the decedent as his daughter, and was therefore entitled to inherit the decedent’s estate.

On appeal, I decided to take a fresh look at the myriad of legal issues presented in this case.  In light of the trial court’s judgment, I came to the conclusion that our standing arguments were weak, and that we had to focus squarely on the due process arguments which persuaded the trial court to refuse recognition of the 1961 Texas adoption decree.  I also wanted to address the important policy issues concerning the finality of adoption judgments.  In presenting the appeal, I placed much more emphasis on the constitutional distinctions between legal fathers and unwed biological fathers.  I argued that the decedent had no right to notice based on biological status alone.  I pointed out that, under the particular circumstances of this case, the decedent was not entitled to notice either in 1961 or currently.  In response, the appellee argued that those U.S. Supreme Court cases beginning with Stanley v. Illinois which establish the right of unwed fathers to notice should be retroactively applied to her closed adoption case.  The Fifth District rejected the retroactivity argument and reversed, holding that the trial court should have given full faith and credit to the 1961 Texas adoption decree based on constitutional doctrine and sound public policy.

2. If you had to do it all over again, would you have done anything different in terms of framing the issues for your trial-court judge? On appeal?

At the trial court level, I would have placed a much heavier emphasis on the due process and public policy issues which ultimately prevailed on appeal.

Briefing the appeal was a very interesting process.  Because the appeal was from a summary judgment, I knew our arguments would be reviewed de novo.  In my initial brief, I felt I had to deal with every significant issue, which did not lend itself to the kind of focus and precision I would normally try to accomplish.  When, in her answer brief, the appellee argued that current due process principles should be retroactively applied to her closed adoption, the case distilled down to the essential issue:  may a Florida judge refuse to recognize a fifty year old Texas adoption decree by applying due process principles which were not in existence until more than a decade after the Texas adoption proceeding was closed?  The Fifth District answered the question:  no.

3.  There was an all-or-nothing quality to this case. The biological daughter won at the trial court level, entitling her to 100% of the estate and 0% for the decedent’s cousins. On appeal, the decedent’s cousins won, entitling them to 100% of the estate and 0% for the biological daughter. Did this fact inform how you managed the case in terms of the litigation or settlement negotiations? Is so, how?

Probate litigation often involves all or nothing outcomes.  Intestate succession is not determined by merit but by status.  The existence of an heir of closer relationship may exclude all potential heirs of more remote relationship.  A judge simply has no power to equitably divide an estate.  In some cases, an intestate decedent’s estate may wind up in the hands of distant cousins with whom the decedent had no particular relationship.  In this case, the cousins whose interests I represented were referred to by my opponents, pejoratively, as “laughing heirs.”

This is a case that might (and probably should) have settled at the trial court level.  It was mediated, unsuccessfully, as part of the appeal.  Unfortunately, by the time we got to mediation there was already a judgment in place.  I believe that the judgment gave the appellee a sense of invulnerability which resulted in inflexibility and, ultimately, an impasse.

4.  The 5th DCA quotes the following lines from a dissenting opinion authored by Justice Stevens: “The adoption decrees that have been entered without the consent of the natural father must number in the millions. An untold number of family and financial decisions have been made in reliance on the validity of those decrees…. [T]hose reliance interests unquestionably foreclose retroactive application of this ruling.” Did this practical implication of retroactivity play a significant role in your case at the trial-court level? On appeal?

I was particularly happy to have found that Justice Stevens’ opinion because it describes exactly the mischief which would be created by the retroactive application of later-developed due process principles to reopen closed adoption cases.  This argument was made to the trial court, although probably not with the emphasis it should have been.  On appeal, the practical implication of retroactivity was the essential issue.  Both sides agreed that Texas law in 1961 did not require notice of adoption proceedings to putative fathers.  To win, the appellee had to establish that later-developed constitutional principles could be applied retroactively to collaterally attack her 1961 Texas adoption judgment.  But, as the Fifth District explained, the implication of that would be to significantly damage or destroy the finality and permanence of adoptions, an intolerable outcome.

5.  Any final words of wisdom for estate planners and probate lawyers of the world based on what you learned in this case?

I never met the decedent in this case.  The evidence suggests that once the appellee found the decedent, he acknowledged her as his biological daughter.  They apparently had a cordial relationship while he was alive.  Whether the decedent intended his daughter to receive his estate cannot now be known because he died without a valid will.  So the first lesson from this case is: make a will.

Once in litigation, this case presented many layers of issues.  In that situation, focus is essential although it can sometimes be difficult.  In this case, we gained focus at each stage of the litigation and finally arrived at the essential issues during the appeal.  The earlier you can determine the essential issues in your case, the more likely you are ultimately to prevail.

From the Humor File

Posted in Musings on the Practice of Law

There’s nothing like a good cartoon to add some much-needed levity to our professional lives. I recently posted here some of the cartoons I’ve collected over the years. Lansing R. Palmer of Akerman LLP in West Palm Beach was kind enough to share his own collection of funny cartoons, which I’m posting below with his blessing. If anyone else has their own collection of practice-related cartoons and your willing to share, please pass them along.

 

Must read for Florida guardianship lawyers: Sarasota Herald-Tribune’s special investigative series: “Elder guardianship: A well-oiled machine”

Posted in Contested Guardianship Proceedings, Trust and Estates Litigation In the News

guardianship-systemA special multi-part investigative series published by the Sarasota Herald-Tribune entitled Elder guardianship: A well-oiled machine, reported that while Florida has an efficient system of identifying and caring for fragile elders, “tapping their assets is a growth business.” Here’s an excerpt from the Herald-Tribune report:

The idea behind guardianship is to protect older citizens. But Florida has become a place where quiet, desperate disasters happen daily, often touched off by a single phone call.

In the middle of an unprecedented national longevity trend, half of all Americans 85 and over are believed to experience significant cognitive decline. Many of them wind up in sunny Florida, far away from sons and daughters — some with enough assets to make them attractive to scammers and cheats, others outliving their savings and utterly dependent on the state.

In response to a pressing need, Florida has cobbled together an efficient way to identify and care for helpless elders, using the probate court system to place them under guardianship.

But critics say this system — easily set in motion, but notoriously difficult to stop — often ignores basic individual rights. Most of it plays out in secret, with hearings and files typically closed from the public.

In my opinion most of the problems plaguing Florida guardianship proceedings can be traced back to an underfunded and overworked state court system where judges are routinely expected to juggle thousands of cases at a time (see here). In the wills, trusts and estates arena we can work around this problem by largely opting out of the public court system via mandatory arbitration clauses in our wills and trusts (see here, here). The guardianship arena doesn’t lend itself to the same privatization solution. Which means we’ll need a legislative fix.

Will things change?

As reported by the Florida News Service in Bill Seeks To Stop ‘Cockroaches’ From Preying On Seniors, the Herald-Tribune investigation is already generating a good amount of legislative activity.

A Senate panel on Thursday unanimously approved a bill aimed at protecting Florida seniors from predatory “professional guardians,” described by one lawmaker as “cockroaches.”

The bill (SB 1226), filed by Sen. Nancy Detert, R-Venice, would expand the Statewide Public Guardianship Office at the Department of Elder Affairs, with an eye to tightening oversight of people who assume control of a senior citizens’ finances.

That’s the good news. Now here’s the bad. No matter how good the legislation might be, it’s all for naught if the funding’s not there. Which is why I found the following comments by Sen. Detert troubling:

Detert said the Department of Elder Affairs estimates the cost of her proposal at $3 million for 40 full-time employees, which she thought was a little high.

“I think we can come to a middle ground with the department,” Detert said. “I think we can work together and come up with a system that tightens up the good laws we already have.”

Investigative journalism still matters:

By the way, this wouldn’t be the first time hard hitting investigative journalism sparked a legislative overhaul affecting what goes on in our probate courts. A Pulitzer Prize winning series of editorial reports by the St. Petersburg Times lead to a major overhaul of our probate fee statue (see here). And more recently, an investigative report published by the AARP on how durable powers of attorney are used to financially exploit the elderly, lead to major reforms of Florida’s power-of-attorney statute (see here).

Stay tuned for more . . .

A trusts and estates lawyer’s favorite quotes

Posted in Musings on the Practice of Law

If you don’t have a sense of humor, you’re not going to last very long in this crazy profession we call lawyering. One way I stay sane is by collecting quotes that make me smile or reflect on what I do for a living in a different way. There wasn’t a master plan to this list, it just sort of grew organically over the years. Anyway, it’s time to share, so here goes.

The virtue of compromise:

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be enough business.”

- Abraham Lincoln

Style matters:

to-kill-a-mockingbird-and-the-verdict-and-a-few-good-men-530-031111“What I admire most in any [litigator] is a serene spirit, a steady freedom from moral indignation, an all-embracing tolerance — in brief, what is commonly called good sportsmanship. Such a man is not to be mistaken for one who shirks the hard knocks of life. On the contrary, he is frequently an eager gladiator, vastly enjoying the opposition. But when he fights he fights in the manner of a gentleman fighting a duel, not in that of a longshoreman cleaning out a waterfront saloon. That is to say, he carefully guards his amour proper by assuming that his opponent is as decent a man as he is, and just as honest — and perhaps, after all, right. Such an attitude is palpably impossible to [the ‘Rambo’ litigator]. His distinguishing mark is the fact that he always attacks his opponents, not only with all arms, but also with snorts and objurgations — that he is always filled with moral indignation — that he is incapable of imagining honor in an antagonist, and hence incapable of honor himself. Such fellows I do not like. I do not share their emotion. I can’t understand their indignation, their choler. . . . .”

- Mencken Chrestomathy, by H.L. Mencken

“The oft-quoted adage, ‘a man who represents himself has a fool for a client,’ is particularly wise because it recognizes the beneficial nature of having an objective advocate. The role of an attorney is to ensure that the best legal interests of his or her clients are being served. Often, a client’s best legal interests are inconsistent with the client’s driving emotions. Therefore, the attorney should take great care to remain objective and quell any emotions that would be detrimental to the client’s interest. The [litigant] did not have such an attorney in [this case] . . . . Consequently, this litigation ensued without the proper and necessary objective preliminary investigation.”

U.S. District Judge Marcia Cooke, Miccosukee Tribe of Indians of Florida v. Cypress, Slip Copy, 2015 WL 235433 (S.D.Fla. January 16, 2015) (Lawyer ordered to pay more than $1 million in sanctions for frivolous claim).

The drama of human relationships:

i-disinherit-everybody-new-yorker-cartoon

“Now read me the part again where I disinherit everybody.” – New Yorker Cartoon by Peter Arno (1940)

“There is nothing like the death of a moneyed member of the family to show persons as they really are, virtuous or conniving, generous or grasping. Many a family has been torn apart by a botched-up will. Each case is a drama in human relationships — and the lawyer, as counselor, draftsman, or advocate, is an important figure in the dramatis personae. This is one reason the estates practitioner enjoys his work, and why we enjoy ours.”

- Jesse Dukeminier and Stanley M. Johanson, introduction to 1972 edition of Family Wealth Transactions: Wills, Trusts, Future Interests, and Estate Planning.

“Happy families are all alike; every unhappy family is unhappy in its own way.”

- Leo Tolstoy (1828 – 1910), Anna Karenina, Chapter 1, first line

“Death is not the end. There remains the litigation over the estate.”

Ambrose Bierce

“Wills are uncanny and electric documents. They lie dormant for years and then spring to life when their author dies, as if death were rain. Their effect on those they enrich is never negligible, and sometimes unexpectedly charged. They thrust living and dead into a final fierce clasp of love or hatred. But they are not written in stone—for all their granite legal language—and they can be bent to subvert the wishes of the writer.”

Strangers in Paradise: How Gertrude Stein and Alice B. Toklas got to Heaven, by Janet Malcolm, The New Yorker, Nov. 13, 2006, at 57.

Governing assumptions:

“Never ascribe to malice that which can adequately be explained by incompetence.”

- Napoleon Bonaparte

“For every complex problem there is an answer that is clear, simple, and wrong.”

  - H. L. Mencken

“There is nothing so practical as a good theory.”

- Kurt Lewin

having-a-fine-old-name-really-has-been-enough-for-me-new-yorker-cartoon

“Having a fine old name really has been enough for me.” – New Yorker Cartoon by William Hamilton (1977)

“The earth belongs in usufruct to the living; the dead have neither powers nor rights over it. The portion occupied by any individual ceases to be his when he himself ceases to be, and reverts to society.”

- Thomas Jefferson (Letter to James Madison, dated Sept. 6, 1789).

“[W]hen we recollect the infirmities of old age, we must be satisfied that it is necessary not to deprive it of this counterpoise of factitious attractions [prospects of inheritance by the younger giving care to the older.] In the rapid descent of life, every support on which man can lean should be left untouched, and it is well that interest serve as monitor to duty.”

- Jeremy Bentham, The Theory of Legislation 184 (C.K. Ogden ed., 1950).

“A clear; obvious, natural line is drawn for us between those persons and events which the Settlor knows and sees, and those which he cannot know and see. Within the former province we may push his natural affections and his capacity of judgment to make better dispositions than any external Law is likely to make for him. Within the latter, natural affection does not extend, and the wisest judgment is constantly baffled by the course of events. . . . What I consider to be not conjectural, but proved by experience in all human affairs, is, that people are the best judges of their own concerns; or if they are not, that it is better for them, on moral grounds, that they should manage their own concerns for themselves, and that it cannot be wrong continually to claim this liberty for every Generation of mortal men.”

- Arthur Hobhouse, on the “cold and numbing influence of the Dead Hand.” The Dead Hand 188, 183-185 (1880).

Testamentary Capacity:

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“It’s a little less amusing when you hear your kids calling it ‘the death tax.'” – New Yorker Cartoon by William Hamilton (2001)

“Money-giving is a very good criterion . . . of a person’s mental health. Generous people are rarely mentally ill people.”

- Dr. Karl A. Menninger, quoted in NEWSWEEK, November 2, 1959

“[T]he post mortem squabblings and contests on mental condition . . . have made a will the least secure of all human dealings.”

- Lloyd v. Wayne Circuit Judge, 23 N.W. 28, 30 (Mich. 1885).

Revoking your Will the old fashioned way:

“[I]n 2001 decedent took his original copy of the 1997 will, urinated on it and then burned it. We hesitate to speculate how he accomplished the second act after the first. In any event, decedent’s actions lead to the compelling conclusion he intended to revoke the 1997 will.”

- Estate of Stoker, 193 Cal. App. 4th 236 (Cal. 2011)

Undue Influence:

“To be undue influence in the eye of the law there must be — to sum it up in a word — coercion. . . . It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that is undue influence. The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at the stage of illness and pressing something upon him may so fatigue the brain, that the side person may be induced, for quietness’ sake, to do anything. This would equally be coercion, though not actual violence. These illustrations will sufficiently bring home to your minds that even very immoral considerations either on the part of the testator, or of some one else offering them, do not amount to undue influence unless the testator is in such a condition, that if he could speak his wishes to the last, he would say, ‘this is not my wish, but I must do it.'”

- Lord Justice Hannen, Wingrove v. Wingrove, 11 Prob. Div. 81 (U.K. 1885)

Fiduciaries:

i-blew-i-new-yorker-cartoon

“His will reads as follows: ‘Being of sound mind and disposition, I blew it all.’” – New Yorker Cartoon by Frank Modell (1972)

“But to say that a man is a fiduciary only begins analysis; it gives direction to further inquiry. To whom is he a fiduciary? What obligations does he owe as a fiduciary? In what respects has he failed to discharge these obligations? And what are the consequences of his deviations from duty?”

Justice Felix Frankfurter, SEC v. Chenery Corp., 318 U.S. 80, 85-86 (1943)

“Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by the fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exceptions . . . . Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.”

- Justice Benjamin Cardozo, Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928)

Tax Planning:

“[A] transaction, otherwise within an exception of the tax law, does not lose its immunity, because it is actuated by a desire to avoid, or, if one choose, to evade, taxation. Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one’s taxes.”

- Judge Learned Hand, Helvering v. Gregory, 69 F.2d 809, 810-11 (2d Cir. 1934).

“The less the rewards of wealth are associated with one’s own contribution, the better the case for taxing them. . . . . Inheritance remains one of the purest forms of ‘getting something for nothing.'”

- John A. Brittain, Inheritance and the Inequality of Material Wealth 13 (1978)

Funerals:

“Always go to other people’s funerals, otherwise they won’t come to yours.”

- Yogi Berra

Life:

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“Everything I have, son, I have because your grandfather left it to me. I see now that that was a bad thing.” – New Yorker Cartoon by Leo Cullum (1995)

“What’s the takeaway?” a neighbor of mine is always asking his kids whenever they run into something harder than they are. Good question. I have no idea. The only thing your life teaches you is how to live your life. And that’s only if you’re very lucky. And you listen very hard. Life teaches elliptically, epigrammatically, retrospectively. If life was a professor, you’d flunk him on his evaluations. Just tell me the goddam answer, you want to say. It’s a race between your foolishness and your allotted days. Good luck. That’s my takeaway.

- Nobody’s Son, by Mark Slouka (The New Yorker January 6, 2014)

When you’re young, you think there’ll be plenty of time for everything in your life: counting all the grains of sand in the Sahara Desert, seeing all the people in the world, becoming greater than Jesus and Lenin and Lomonosov and Pushkin and Einstein all rolled into one, reuniting at some point with everyone you’ve met once in your life, befriending every man, falling in love with every woman… Life is a process of gradually coming to terms with the meaning and the very concept of never-ness. Never—well, so be it. Quoth the raven: oh well, them’s the breaks. Get used to it. Get over it. Life is a perishable proposition of rapidly diminishing returns. You could’ve become this or that; you could’ve been here and there and everywhere; but that didn’t happen—and well, so be it. There won’t be, in the end of your life, a joyous, transcendentally meaningful regathering of everyone you’ve ever met on your path, with stories shared and wine flowing and laughter lilting and happiness abounding and life never-ending—well, so be it.

- Life: How Was It?, by Mikhail Iossel (The New Yorker March 13, 2013)

A few months ago, Ezekiel Emanuel had an essay in The Atlantic saying that, all things considered, he’d prefer to die around age 75. He argued that he’d rather clock out with all his powers intact than endure a sad, feeble decline. The problem is that if Zeke dies at 75, he’ll likely be missing his happiest years. When researchers ask people to assess their own well-being, people in their 20s rate themselves highly. Then there’s a decline as people get sadder in middle age, bottoming out around age 50. But then happiness levels shoot up, so that old people are happier than young people. The people who rate themselves most highly are those ages 82 to 85.

- Why Elders Smile, by David Brooks (NYT 12/4/14)

11th Cir: Does a trustee’s lawyer owe fiduciary duties to the trust’s beneficiaries?

Posted in Ethics & Malpractice Claims

Bain v. Mcintosh, — Fed.Appx. —-, 2015 WL 859481 (11th Cir. March 02, 2015) 

frankfurter_hearing

“But to say that a man is a fiduciary only begins analysis; it gives direction to further inquiry. To whom is he a fiduciary? What obligations does he owe as a fiduciary? In what respects has he failed to discharge these obligations? And what are the consequences of his deviations from duty?” – Justice Felix Frankfurter, SEC v. Chenery Corp., 318 U.S. 80, 85-86 (1943)

The nature and extent of the fiduciary duties — if any — owed by the lawyer for a trustee or personal representative to the beneficiaries of the trust or estate has always been a hot topic. The “traditional” view in most jurisdictions is that the attorney’s fiduciary duties extend only to his client — not the beneficiaries. This view was adopted in ABA Formal Opinion 94-380 and it’s reflected in Goldberg v. Frye, a California appellate opinion that thoughtfully explains why the limitation makes sense:

“Particularly in the case of services rendered for the fiduciary of a decedent’s estate, we would apprehend great danger in finding stray duties in favor of beneficiaries. Typically in estate administration conflicting interests vie for recognition. The very purpose of the fiduciary is to serve the interests of the estate, not to promote the objectives of one group of legatees over the interests of conflicting claimants. [Citation.] The fiduciary’s attorney, as his legal adviser, is faced with the same task of disposition of conflicts. It is of course the purpose and obligation of both the fiduciary and his attorney to serve the estate. In such capacity they are obligated to communicate with, and to arbitrate conflicting claims among, those interested in the estate. While the fiduciary in the performance of this service may be exposed to the potential of malpractice (and hence is subject to surcharge when his administration is completed), the attorney by definition represents only one party: the fiduciary. It would be very dangerous to conclude that the attorney, through performance of his service to the administrator and by way of communication to estate beneficiaries, subjects himself to claims of negligence from the beneficiaries. The beneficiaries are entitled to evenhanded and fair administration by the fiduciary. They are not owed a duty directly by the fiduciary’s attorney. [Citations.]”

Again, this seems to be the generally accepted view. But, as always, there are exceptions. For example, in 1992 the Nevada Supreme Court observed in Charleson v. Hardesty that:

“[W]hen an attorney represents a trustee in his or her capacity as trustee, that attorney assumes a duty of care and fiduciary duties towards the beneficiaries as a matter of law.”

So what’s the rule in Florida? That’s the question at the heart of this case.

Does a trustee’s lawyer owe fiduciary duties to the trust’s beneficiaries? NO

The trustee in this case hired a lawyer to prepare trust accountings. Those accountings were eventually challenged, and in the midst of the firefight between the trustee and the beneficiaries, the trustee’s lawyer became a target, eventually finding himself on the receiving end of a federal lawsuit filed by the beneficiaries. They claimed that as the trustee’s lawyer, he owed them a fiduciary duty to prepare proper trust accountings, and if he failed in that duty, they could sue him for damages. The lawyer moved for summary judgment, arguing that as a matter of law the lawsuit fails because he only owed fiduciary duties to his client (the trustee), not the beneficiaries. So is that the law in Florida? Yes! so said the trial court and the 11th Circuit:

The district court did not err in in granting summary judgment because Kane owed no fiduciary duty to the Walthers under Florida law. The Florida Legislature has indicated an unwillingness to expand a lawyer’s fiduciary duties to a person other than the trustee. Pursuant to Florida Statutes § 90.5021(2) (2011), “only the person or entity acting as a [trustee] is considered a client of the lawyer.” Furthermore, the Rules Regulating the Florida Bar, which are promulgated by Florida Supreme Court, narrowly limit a lawyer’s duties to third parties when serving as the personal representative of an estate. R. Regulating Fla. Bar 4–1.7 cmt. (2014) (“In Florida, the personal representative is the client rather than the estate or the beneficiaries.”); see also ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 94–380 (1994) (“The majority of jurisdictions consider that a lawyer who represents a fiduciary does not also represent the beneficiaries, and we understand the Model Rules to reflect this majority view.” (citation omitted)).

So can Florida lawyers representing fiduciaries rest easy in the knowledge that they can’t be sued by beneficiaries who happen to be feuding with their client? Probably not. The general trend in Florida is that third party beneficiaries of a lawyer’s legal services can sue the lawyer for malpractice — and it doesn’t matter that the beneficiaries were never your client, you had zero privity of contract with them, and you owe them zero fiduciary duties. Recent Florida examples include cases in which estate beneficiaries had standing to sue a guardian’s lawyers for malpractice (click here), a successor personal representative had standing to sue his predecessor’s attorney for malpractice (click here), and disgruntled heirs had standing to sue a testator’s estate planning attorneys for malpractice (click here). But it’s not all bad news, while this line of attack is scary, it does have its limits (see here).

So was the third-party-beneficiary line of attack the lawyer’s undoing in this case? No. But not because it didn’t apply, the plaintiffs just didn’t get around to asserting it until it was too late:

Because the Walthers failed to plainly and prominently argue in their initial brief that they were intended third-party beneficiaries of the legal services contract between Kane and the Trustee, they have abandoned this argument. United States v. Jernigan, 341 F.3d 1273, 1283 n. 8 (11th Cir.2003).

Lesson learned?

Obviously, it’s a good idea to know who your client is. If you’re representing a trustee or personal representative, this question gets complicated by the web of fiduciary duties underlying trusts and estates generally. If litigation breaks out, you can expect this issue to come up primarily in the context of privilege disputes. For example, that’s the specific question addressed in ABA Formal Opinion 94-380, which concluded as follows:

A lawyer who represents the fiduciary in a trust or estate matter is subject to the same limitations imposed by the Model Rules of Professional Conduct as are all other lawyers. The fact that the fiduciary has obligations to the beneficiaries of the trust or estate does not in itself either expand or limit the lawyer’s obligations to the fiduciary client under the Model Rules, nor impose on the lawyer obligations toward the beneficiaries that the lawyer would not have toward other third parties. Specifically, the lawyer’s obligation to preserve the client’s confidences under Rule 1.6 is not altered by the circumstance that the client is a fiduciary.

The same rule applies in Florida, as codified in F.S. 90.5021, which was adopted in 2011 (see here).

The second, but thankfully less common, line of attack to raise its ugly head in this context is some kind of direct claim by the beneficiaries against the trustee’s lawyer. Figuring out how to dissect that kind of claim from a breach-of-fiduciary-duty point of view gets muddled by the “standing” issues underlying the third-party-beneficiary line of malpractice cases we have here in Florida. This case is a welcomed shot of clarity. Regardless of who may have standing to sue you, we know this: Florida lawyers have fiduciary duties to only one party — their client.

For those of you looking to do a deeper dive into this bramble bush, a good starting point is a recent law review article entitled Blurred Lines: Analyzing an Attorney’s Duties to a Fiduciary-Client’s Beneficiaries. Here’s an excerpt:

The costs of imposing a duty on a fiduciary’s attorney owed to beneficiaries may have some benefits that are not integrated into the traditional approach, but those benefits do not outweigh the costs. The traditional approach provides significant advantages while simultaneously protecting beneficiaries’ interests and providing adequate remedies for any breach of duties owed to them. The lack of uniformity across states concerning this issue creates the possibility for substantial liability that attorneys are often unaware exists. The traditional approach offers the benefit of clarity of an attorney’s obligations. That clarity serves not only the attorney but also the fiduciary-client and the beneficiaries of the trust or estate, allowing a wider availability of legal services in this setting at lower costs. To ensure clarity in state trusts and estates law and adequate protection to all parties involved, state legislators should begin drafting legislation implementing the traditional approach before more attorneys enter the race of fiduciary representation with unsettled law blurring the lines.

5th DCA: Can a woman invalidate her own Texas adoption to win a Florida estate case?

Posted in Practice & Procedure

Kemp & Associates, Inc. v. Chisholm, — So.3d —-, 2015 WL 477856 (Fla. 5th DCA February 06, 2015)

28adoption.600

Inheritance disputes tend to be deeply personal affairs, often involving challenges to a person’s core identity or “status” as a family member. (Illustration by Yane Calovski)

Inheritance disputes tend to be deeply personal affairs, often involving challenges to a person’s core identity or “status” as a family member. Past examples include cases turning on a person’s contested status as a lineal descendant (e.g., are you a “pretermitted” child (click here), or a validly “adopted” adult (click here, here), or a legitimate “descendant by blood” (click here), or a “posthumously” conceived child (click here)); or a person’s contested status as a parent (e.g., are you a “legally” recognized father (click here)); or a person’s contested status as a spouse (e.g., were you “legally” married (click herehere)). This case turns on a woman’s status as the “biological” daughter of her birth parents vs. her status as the “legal” daughter of her adopted parents.

Summer of love:

The backstory to this case stretches to the summer of 1960 when, as described by the 5th DCA, “a romance blossomed between J.K.T., a young, unmarried woman, and Teofil E. Shablowski.” So began a chain of events that led this young woman to the “Texas Mission Home & Training School, a home for unwed mothers,” her daughter’s adoption in 1961, and this daughter’s search decades later for her biological parents. Again from the 5th DCA:

[The romance] ended before J.K.T. discovered that she was pregnant. She never told Mr. Shablowski that she was pregnant, and they were never in contact again. Instead, she entered the Texas Mission Home & Training School, a home for unwed mothers, intending to place her child for adoption. A healthy baby girl was born to J.K.T. in January 1961. Shortly thereafter, that child was adopted by Thomas and Maxine Chisholm in accordance with Texas law, and named Lisa Lou Chisholm. Though J.K.T. gave the Mission Home Mr. Shablowski’s name and enough information to locate him, he received no notice of Ms. Chisholm’s birth or her subsequent adoption.

As Ms. Chisholm grew older, she became curious about her biological parents and eventually located J.K.T. With the information learned from J.K.T., and utilizing the services of a private investigator, Ms. Chisholm found Mr. Shablowski in 1997. Mr. Shablowski, unmarried and believing himself to be childless until then, acknowledged Ms. Chisholm as his biological daughter. They established a good relationship, had frequent telephone and written communication, and met in person twice before his death in 2010.

Whose daughter are you?

Shablowski was 77 years old when he died intestate, leaving no surviving spouse, legally-recognized lineal descendants (other than possibly Chisholm), parents, or siblings. Soon thereafter, Chisholm and a group of Shablowski’s distant cousins filed competing claims to his estate. Shablowski’s cousins argued Chisholm was entitled to 0% of the estate because she’d been adopted away in 1961. Under F.S. 63.172 and F.S. 732.108, an adoption terminates the legal relationship between the adopted child and her natural parents, so that for purposes of intestate succession the adopted child is no longer a legally-recognized lineal descendant of the natural parent. On the other hand, if Chisholm’s adoption were invalidated for any reason, her status would switch to sole surviving lineal descendant, meaning she’d get 100% of the estate under F.S. 732.103.

Chisholm argued her 1961 adoption was invalid because Shablowski, her biological father, wasn’t provided with prior notice of her adoption. While conceding this kind of notice wasn’t required under Texas law in 1961 (the same was true in Florida at that time), Chisholm argued it was required as a matter of constitutional due process. Notice to an unwed father of the pending adoption of his child has been required since the U.S. Supreme Court’s 1972 ruling in Stanley v. Illinois, 405 U.S. 645 (1972), a landmark case in which the Court held that the fathers of children born out of wedlock have a fundamental right to their children. In 1975 Florida amended its statutory notice requirements for adoptions under F.S. 63.062 in accordance with the Stanley decision, requiring notice to a putative father concerning a child’s adoption if he has acknowledged and supported the child.

Can you say “retroactivity”?

Chisholm’s argument hinged on whether the U.S. Supreme Court’s 1972 ruling in Stanley should apply retroactively to her 1961 adoption. If it does, she wins, getting 100% of the estate. If it doesn’t, she loses, getting 0% of the estate. Chisholm won at the trial court level. On appeal, her win evaporated, she now gets nothing. Why? Because the 5th DCA didn’t buy her retroactivity argument.

Ms. Chisholm would have us apply Stanley’s holding retroactively to challenge the validity of the Texas adoption judgment. We decline to do so. It is true that a ruling on an issue of federal law announced by the United State Supreme Court is to be given full retroactive effect in all cases “still open on direct review and as to all events, regardless of whether such events predate or postdate [the Supreme Court’s] announcement of the rule.” Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97 (1993). But, the 1961 Chisholm adoption case was closed long before the rule of Stanley was announced. And, the “event” here is Ms. Chisholm’s adoption, not Mr. Shablowski’s subsequent death.

Our decision is driven not only by constitutional precedents, but also by public policy considerations. “The state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner [and] in preventing the disruption of adoptive placements ….” § 63.022(1)(a), Fla. Stat. (2010). Adoptive children also have a right to permanence in their adoptive placements, as adoptive parents have an interest in retaining custody of a legally adopted child. § 63.022(1)(c),(d), Fla. Stat. (2010). These statutes make clear that it is the Florida Legislature’s intent to “protect and promote the well-being of persons being adopted and their birth and adoptive parents and to provide to all children who can benefit by it a permanent family life.” § 63.022(3), Fla. Stat. (2010). Invalidating the 1961 Texas adoption judgment (or, adopting Ms. Chisholm’s more nuanced suggestion, refusing to recognize it) based on the lack of notice to the putative father, would substantially hinder the Legislature’s clearly stated goal of promoting the finality and permanence of adoptions.

Affirming the trial court’s judgment would permit Ms. Chisholm to inherit from her biological father, but would call into question the legal relationship between Ms. Chisholm and Thomas and Maxine Chisholm (and her siblings, if any). If a 1961 Texas adoption is not entitled to recognition in Florida, then adoption judgments under the laws of Florida and other states that did not require notice to putative fathers at the time of the child’s adoption, would also be of questionable validity. This would lead to increased litigation and disruptions to many families, both adoptive and biological. “The adoption decrees that have been entered without the consent of the natural father must number in the millions. An untold number of family and financial decisions have been made in reliance on the validity of those decrees…. [T]hose reliance interests unquestionably foreclose retroactive application of this ruling.” Caban v. Mohammed, 441 U.S. 380, 415–16 (1979) (Stevens, J., dissenting).

An “insider’s” view:

For an insider’s view of this case, you’ll want to read this interview of one of the attorneys on the winning side of the case.

4th DCA: Does a surviving widow have “standing” to assert her predeceased husband’s homestead rights?

Posted in Homestead Litigation, Marital Agreements and Spousal Rights

Lyons v. Lyons, — So.3d —-, 2014 WL 5460621 (Fla. 4th DCA October 29, 2014)

“The Federal estate tax exemption is high enough, $5.43 million per person and double that per couple, that it only affects the very wealthiest people in the country – not even 1% – but an outdated estate planning technique meant to get around a much lower exemption in the 1980s and 90s has left a nasty surprise for anyone still using a qualified personal residence trust (QPRT).” How QPRTs Went From Effective Estate Planning To Time Bomb

This is one of two cases published in 2014 involving litigated homestead rights and property deeded to a qualified personal residence trust (QPRT). (The other was Stone v. Stone, which I wrote about here.) Prior to 2014 it had been over ten years since a Florida appellate court mentioned the word “QPRT” . . . and now all of a sudden we have two QPRT cases in one year. Coincidence? Maybe. It might also reflect the fact that this once common tax planning strategy is now backfiring on many families, and a spike in QPRT/homestead litigation is part of the collateral damage. Here’s an excerpt from How QPRTs Went From Effective Estate Planning To Time Bomb:

The Federal estate tax exemption is high enough, $5.43 million per person and double that per couple, that it only affects the very wealthiest people in the country – not even 1% – but an outdated estate planning technique meant to get around a much lower exemption in the 1980s and 90s has left a nasty surprise for anyone still using a qualified personal residence trust (QPRT).

. . .

The problem is that QPRTs transferred ownership without an increase in basis. In other words, if a house was bought for $100,000 decades ago, transferred via QPRT, and later sold for $1 million (not at all unreasonable figures) the children would have to pay capital gains tax on the $900,000 increase. That might have made sense when there was the trade-off of avoiding estate taxes, but the rationale behind QPRTs has mostly disappeared.

Case Study:

In 1993 Richard and Norma Lyons, a husband and wife, signed a joint deed transferring title to their homestead property to Norma alone. On that same day Norma signed another deed transferring title for the homestead property to a QPRT. Richard and Norma had five children. Richard died in 2007. In 2010 Norma signed a deed transferring title to the homestead property to herself and one of the couple’s daughters, presumably bypassing their three sons. The sons objected; suing to set aside the 2010 deed. Norma defended her 2010 deed by claiming her original 1993 deed transferring the house to the QPRT was invalid because it violated her predeceased husband’s homestead rights, thus it remained her property to do with as she pleased.

Let me digress here a moment. Putting aside the standing issue that ultimately decided this case, the sons’ challenge to their mother’s 2010 deed probably would have prevailed anyway. First, the joint deed Richard and Norma signed in 1993 conveying title to their homestead property probably resulted in a valid waiver of dad’s homestead rights (see Stone v. Stone here). Second, once Norma conveyed the homestead property to the QPRT in 1993, it stopped being her property to give away in 2010 — it was trust property (see Aronson v. Aronson here).

Does a surviving widow have “standing” to assert her predeceased husband’s homestead rights to undo her own actions? NO

Now back to the case at hand. The trial judge was asked to decide if Norma had standing to challenge her own actions as a violation of her pre-deceased husband’s homestead rights. Norma said she did, her sons said she didn’t. Art. X, § 4(c) of the Florida Constitution and F.S. 732.4015(1) prohibit the devise of homestead property if the property’s owner is survived by: (1) a non-owner spouse or (2) minor children. Norma didn’t fall into either of these two protected classes, which means she lacked standing (as argued by her sons). The trial court judge didn’t see it that way, ruling in Norma’s favor. On appeal the 4th DCA reversed, here’s why:

In this case neither Norma nor the adult children were members of the class specifically protected by the constitutional provision. . . . As to Norma, although she is a surviving spouse, she owned the homestead and transferred the homestead to the QPRT. Article X, section 4(c) does not serve to protect Norma from her own actions in transferring her own homestead property.

The plain language of the constitutional provision describes and limits the actions of the owner of the homestead property. . . . The entire provision hinges on the conduct of the owner spouse, and the resultant protections to the non-owner surviving spouse or minor children.

Clearly, in the present case, Norma and her husband were owners of the homestead when they quit claimed the homestead to Norma. Norma then became the sole owner of the homestead and quit claimed the homestead to the QPRT. Norma cannot now claim the quit claim she then executed as sole owner was void ab initio, as she is not the non-owner surviving spouse. At the time of Norma’s quit claim to the QPRT, the only non-owner spouse was Richard.

If there were any infirmities in Norma’s action of quit claiming the homestead to the QPRT, only Richard as the non-owner spouse could rely on the provisions of article X, section 4(c). Clearly, Norma does not have standing to assert Richard’s potential rights had he been the surviving spouse. Norma, as the owner, should not be able to challenge her own acts, as she is not within the class of persons the constitutional provision is designed to protect.

Further, it would be absurd for the party who created the alleged infirmities in the quit claim deed to be able to attack the viability of the same quit claim deed. In other words, Norma should not be able to attack the quit claim deed as void ab initio, where she drafted, relied on, and was the sole signatory to it.

Lesson learned?

The 4th DCA never mentions failed tax planning in this opinion or its opinion in the Stone case, which is not surprising. Both cases turn on non-tax issues involving Florida homestead law. But that doesn’t mean tax issues weren’t driving either of these cases (whether consciously or unconsciously). An appellate decision is like the tip of an iceberg — we only “see” the 10% of a case that breaks the surface on appeal, the other 90% remains hidden (and remember, it was the unseen 90% that sunk the Titanic). Lesson learned? Never assume you know the whole story.

Florida needs to adopt the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act

Posted in Contested Guardianship Proceedings, Trust and Estates Litigation In the News

The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) addresses a problem that needs fixing in Florida: inter-state forum shopping in contested guardianship proceedings. In 2014, three states adopted the UAGPPJA, bringing the total to 40 states plus the District of Columbia and Puerto Rico that have adopted the uniform statute. Unfortunately, Florida is one of the few remaining states that has yet to adopt the UAGPPJA.

For those of you who do much guardianship work, you’ll be interested in a recently-published legislative summary from the American Bar Association’s Commission on Law and Aging. Entitled STATE ADULT GUARDIANSHIP LEGISLATION: DIRECTIONS OF REFORM – 2014, the report does a good job of highlighting the strengths and weaknesses of Florida’s guardianship laws (F.S. Ch. 744) by shining a light on what other states are doing legislatively.

The ABA’s report includes information on 18 state enactments on adult guardianship from 15 states. The section I found most interesting focused on the growing problem of inter-state forum shopping in contested guardianship proceedings.

Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act:

Florida has existing legal theories for resolving multi-jurisdictional guardianship disputes on a case-by-case basis (as demonstrated in the Morrison case, which I wrote about here), but the best long-term solution is adoption of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), which has pretty much been endorsed by just about every organization that might possibly have an interest in the issue, including the National College of Probate Judges, the Conference of Chief Justices and State Court Administrators, the National Guardianship Association, the ABA’s Commission on Law and Aging, the National Academy of Elder Law Attorneys, and the Alzheimer’s Association (see here). For what it’s worth, I’ve been advocating for Florida’s adoption of the UAGPPJA since 2009, when legislation adopting the uniform act was introduced by Representative Elaine J. Schwartz as HB 305, then inexplicably withdrawn (see here).

In 2014, three states adopted the UAGPPJA, bringing the total to 40 states plus the District of Columbia and Puerto Rico that have adopted the uniform statute. Unfortunately, Florida is one of the few remaining states that has yet to adopt the UAGPPJA. That’s a problem that needs fixing ASAP. Here’s an excerpt from the ABA report:

In our increasingly mobile society, adult guardianships often involve more than one state, raising complex jurisdictional issues. For example, many older people own property in different states. Family members may be scattered across the country. Frail, at-risk individuals may need to be moved for medical or financial reasons. Thus, judges, guardians, and lawyers frequently are faced with problems about which state should have initial jurisdiction, how to transfer a guardianship to another state, and whether a guardianship in one state will be recognized in another.

Such jurisdictional quandaries can take up vast amounts of time for courts and lawyers, cause cumbersome delays and financial burdens for family members, and exacerbate family conflict — aggravating sibling rivalry as each side must hire lawyers to battle over which state will hear a case and where a final order will be lodged. Moreover, lack of clear jurisdictional guideposts can facilitate “granny snatching” and other abusive actions.

1. Background on Uniform Act. To address these challenging problems, the Uniform Law Commission in 2007 approved the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA). The UAGPPJA seeks to clarify jurisdiction and provide a procedural roadmap for addressing dilemmas where more than one state is involved, and to enhance communication between courts in different states.

. . .

2. Passage of Uniform Act by States. As it is jurisdictional in nature, the UAGPPJA cannot work as intended — providing uniformity and reducing conflict — unless all or most states adopt it. See Why States Should Adopt the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.

  • In 2008, five states (Alaska, Colorado, Delaware, Utah and the District of Columbia) quickly adopted the Act.
  • In 2009, the eight states adopting the Act include Illinois, Minnesota, Montana, Nevada, North Dakota, Oregon, Washington, and West Virginia.
  • In 2010, seven states adopted the Act, including Alabama, Arizona, Iowa, Maryland, Oklahoma, South Carolina and Tennessee.
  • In 2011 another ten states enacted the UAGPPJA, including Arkansas, Idaho, Indiana, Kentucky, Missouri, Nebraska, New Mexico, South Dakota, Vermont and Virginia.
  • In 2012, six states passed the Uniform Act, including Connecticut, Hawaii, Maine, New Jersey, Ohio and Pennsylvania.
  • In 2013, two additional states, Wyoming and New York, joined the list

In 2014, three states passed the Uniform Act, bringing the total to 40 states plus the District of Columbia and Puerto Rico. The Act is pending in additional states.

  • Mississippi passed SB 2240, which was signed by the Governor in March.
  • Massachusetts passed SB 2249, which was signed by the Governor in August.
  • California SB 940, which was signed by the Governor in September.

4th DCA: Should post-nuptial waivers of homestead rights be assumed anytime spouses sign a joint deed?

Posted in Homestead Litigation, Marital Agreements and Spousal Rights

Stone v. Stone, — So.3d —-, 2014 WL 5834826 (Fla. 4th DCA November 12, 2014)

4th DCA: Joint deed = valid homestead waiver under F.S. 732.702

Under Florida law a surviving spouse’s testamentary rights in the couple’s marital homestead residence are spelled out in Art. X, § 4(c) of the Florida Constitution and F.S. 732.4015(1). Spouses are free to contractually waive their homestead rights, and often do for estate planning purposes. The statutory requirements governing these waivers are found in F.S. 732.702.

Is “waive” a “talismanic” word within F.S. 732.702?

For the second time in less than 5 years, a Florida appellate court has issued a potentially game-changing homestead decision involving the application of F.S. 732.702 to joint deeds. The first was issued in 2011 by the 3d DCA in Habeeb v. Linder (which I wrote about here). We now have a follow-up opinion from the 4th DCA. If these rulings are broadly applied, post-nuptial waivers of homestead rights should be assumed in virtually all spousal transfers via any kind of “joint” deed (i.e., a deed signed by both the husband and the wife).

At issue in Habeeb and again in this case is whether a joint deed must at the very least include the word “waiver” somewhere within the four corners of the document to qualify as a valid waiver under F.S. 732.702. According to the 3d DCA’s originally-published opinion in Habeeb the answer is NO:

The statute itself contemplates that a “written contract, agreement, or waiver” may be used to memorialize a relinquishment of a spouse’s homestead rights. These alternatives demonstrate that “waive” is not a talismanic word within the statute, so that a contract or agreement may accomplish the same result.

Case Study:

In this case a husband and wife (Jerome and Alma) executed a joint warranty deed in March 2000 splitting title to their homestead residence into two one-half tenancy in common interests and then subsequently transferred their respective one-half interests to two separate qualified personal residence trusts (“QPRTs”), each having a 5-year term. QPRTs are commonly-used estate planning vehicles. The homestead issues in this case turn on whether the joint deed was a valid waiver under F.S. 732.702.

Jerome and Alma had two children, Ross and Nancy. Jerome died in February 2005, just shy of his QPRT’s fifth year anniversary date. This meant Jerome’s half of the homestead property reverted back to his estate. Jerome devised his entire estate, including his half of the homestead property, to Alma in trust. When Alma died in 2009, these assets all went to Nancy — Ross was cut out. Ross tried to undo his disinheritance (at least in part) by arguing that his father’s devise of his half of the homestead property didn’t comply with the homestead-devise restrictions found in Art. X, § 4(c) of the Florida Constitution and F.S. 732.4015. If Ross was right, under F.S. 732.401(1) he’d be entitled to one-half of his father’s retained interest in the homestead property. If Ross was wrong, Nancy keeps it all. Nancy argued Ross was wrong because their mother had validly waived her testamentary homestead rights under F.S. 732.702 when she executed the joint deed.

4th DCA: Joint deed = valid homestead waiver under F.S. 732.702:

The joint deed Alma signed with her husband didn’t say a word about waiving anyone’s homestead rights, but it did include the kind of antiquated catchall conveyance phrases lawyers have been using in deeds for centuries, confirming transfer of all tenements, hereditaments, and appurtenances in any way pertaining to the couple’s homestead property. In Habeeb the 3d DCA concluded that this kind of boilerplate text — even in the absence of any reference whatsoever to any kind of “waiver” — satisfied the statutory requirements governing homestead waivers found in F.S. 732.702 (see here). A single appellate court’s statutory interpretation can be written off as a fluke. Not so when it’s confirmed by another district court of appeal, which is what happened here when the 4th DCA basically came to the same conclusion:

The trial court . . . found that Alma waived her homestead rights for the purpose of the homestead devise restrictions and, therefore, the disposition of the residence was not in violation of the devise restrictions. We agree.

Alma waived her homestead rights by executing the March 27, 2000 warranty deed splitting the property into two one-half tenancy in common interests and then transferring her interest into her QPRT. Section 732.702, Florida Statutes, provides in part, that “[t]he rights of a surviving spouse to … homestead … may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses.” § 732.702(1), Fla. Stat. (2011). Further, “[u]nless the waiver provides to the contrary, a waiver of ‘all rights,’ or equivalent language” may constitute a waiver of all homestead rights that would otherwise pass to the waiving spouse by intestate succession. Id. The deed Alma executed on March 27, 2000, provided that she “grants, bargains, sells, aliens, remises, releases, conveys, and confirms” the property “together with all the tenements, hereditaments, and appurtenances thereto belonging or in anywise appertaining.” We agree with the trial court that this constituted a waiver of any constitutional homestead rights Alma had in Jerome’s one-half interest in the property.

Do we need a legislative fix?

Rohan Kelley, one of Florida’s foremost experts on homestead law, was on the losing side of Habeeb. Based on the 3d DCA’s opinion one of Mr. Kelley’s arguments opposing the type of deed-waiver we saw in Habeeb (and see again in this case) is that it amounts to an unintended “gotcha” waiver:

The appellant’s parade of horrible hypotheticals following such transactions (which he characterizes as “gotcha waivers”) is . . . unavailing.

One way to address the gotcha-waiver problem is to legislatively amend F.S. 732.702, statutorily requiring that any waiver by deed of homestead rights have some reference to homestead or at least require the use of the term “waive” or “waiver.” Apparently there’s some talk in Bar circles of doing just that. Prominent Boca Raton probate attorney Charles (Chuck) Rubin wrote about the 4th DCA’s opinion in the Stone case here, in which he provides the following thoughts on whether the gotcha-waiver problem requires a legislative fix:

“From a policy standpoint, there has already been some discussion among Florida attorneys about whether a statutory amendment is advisable to require that any waiver by deed of homestead rights have some requisite reference to homestead or at least require the use of the term “waive” or “waiver.” Having personally seen on more than one occasion such joint deeds sought to be applied against the homestead rights of a surviving spouse when the spouse did not realize that signing on the deed constituted a waiver, I would be in favor of it . . .”

Stay tuned for more.