Florida Probate & Trust Litigation Blog : Florida Probate Litigation, Will Contest Lawyer & Attorney : Juan C. Antúnez : Serving Miami, Jacksonville, Tampa Saint Petersburg, Orlando, Fort Lauderdale

The ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 05-434, which address conflicts which may arise when an attorney represents several members of the same family in estate planning matters. The Wills, Trusts & Estates Prof Blog posted a good summary of the Opinion here. As a practitioner, I agree with the ABA's conclusion that the conflicts can be successfully managed. The Prof Blog argues that this type of representation is "simply not worth the risk."

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Granted, this isn't exactly a probate-litigation story, but the estate tax looms so large over every aspect of trust and estates law in the U.S., I can't just ignore it.

So here's the latest. In what is becoming an annual ritual (usually timed for maximum political advantage), the House voted yet again on April 13, 2005 (272-162) to repeal the federal estate tax in 2010 and beyond. The legislation would prevent the estate tax from re-emerging after its scheduled elimination, for one year, in 2010. Previous bills passed by the House have languished in the Senate. Talks between Republicans and Democrats have just begun in the Senate, where some lawmakers have worried about increasing federal deficits. In fact, with a $1.3 trillion deficit already forcast for the next decade, walking away from an additional $290 billion in lost estate-tax revenues (source: Joint Committee on Taxation Report) has some fiscally conservative Republicans re-evaluating their positions. Estate tax repeal's top proponent, Sen. Jon Kyl, R-Ariz., refused to predict an outcome. The full Associated Press story is available here.

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Collinson v. Miller, 2005 WL 840188 (Fla. 2 DCA April 13, 2005) (TRIAL COURT REVERSED)

This case should be kept in your files and shared with clients who would rather skip any type of formalized planning for what is in all likelihood their single largest asset - their homestead property - and opt instead for some sort of unwritten "trust me" estate plan. In terms of technical guidance, you may also want to keep this one on the shelf and refer back to it the next time you need to wade into the legal thicket surrounding exactly what "constructive trusts" are, when they are used, and when they don't apply.

This case involved a second marriage where both spouses had children from previous marriages (this fact alone should instantly trigger alarm bells). "Husband" purchased waterfront property and built a home on the property. The idea was that if "Wife" survived Husband, she would be able to use the home for the rest of her, but at her death the house (which was valued at over $2.2 million in Wife's estate) would go to Husband's children.

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Jordan v. Fehr, 2005 WL 831382 (Fla. 1 DCA April 12, 2005) (TRIAL COURT REVERSED)

Under F.S. § 733.201(1), a Will that that is "self-proved" in accordance with the statutory form provided in F.S. § 732.503, is admissible to probate without the testimony of the attesting witnesses. If the Will is not self-proved, under F.S. § 733.107 the proponent of the Will has the burden of esablising "prima facie" its formal execution and attestation. OK, now that I've spun your head with all these rules, what do they mean in real life you may ask?

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Cohen v. Guardianship of Cohen, 30 Fla. L. Weekly D664 (Fla. 4 DCA March 9, 2005) (TRIAL COURT AFFIRMED)

Commenting that this case presented an issue of "first impression in Florida," the Fourth DCA affirmed a trial court's refusal to enforce burial instructions in the decedent's Will based on clear and convincing evidence presented by his wife of forty years and others that he had changed his mind since executing his Will. The Fourth DCA held that a testator's body is not considered "property." As such, the general rule of construction found in Probate Code Section 732.6005(2) requiring Wills in Florida to be deemed to pass all property that the testator owns at death does not apply to bodily dispositions. Instead, the 4th DCA formulated the following rule regarding the disposition of a Florida testator's body:

[A] testamentary disposition is not conclusive of the decedent's intent if it can be shown by clear and convincing evidence that he intended another disposition of his body.

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Jensen v. Estate of Gambidilla, 30 Fla. L. Weekly D578 (Fla. 4 DCA March 2, 2005) (TRIAL COURT REVERSED)

St. Lucie County Circuit Court Judge Marc A. Cianca entered a civil contempt order requiring an estate's former personal representative to be incarcerated until she returned certain items of personal property to the estate. The Fourth DCA reversed the trial court's order holding that Probate Rule 5.440(d) contempt proceedings require that a trial court expressly find that the removed personal representative had the present ability to comply its order.

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Parker v. Estate of Bealer, 890 So.2d 508 (Fla. 4 DCA January 5, 2005) (TRIAL COURT AFFIRMED)

The key issue in this case was whether an interested person's attorney had to actually file a notice of appearance in the probate proceedings before he or she would be deemed to be "the attorney representing [the] interested person" for purposes of Probate Rule 5.040(a)(3)(A)(i) (Formal Notice) and Probate Code Section 731.301 (Notice). Palm Beach Circuit Court Judge Mary E. Lupo ruled that filing a notice of appearance in the probate proceedings was not required.

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Florida's Constitutional Homestead Protection

Article X, Section 4, Florida Constitution

Florida's "Probate Code" is contained in Chapters 731 -- 735 of the Florida Statues.

Ch. 731 General Provisions
Ch. 732 Intestate Succession of Wills
Ch. 733 Administration of Estates
Ch. 734 Foreign Personal Representatives; Ancillary Administration
Ch. 735 Small Estates

Other relevant statutes include the following:

Ch. 198 Estate Taxes
Ch. 738 The Florida Uniform Principal and Income Act
Ch. 744 Guardianship
Ch. 747 Conservatorship
Ch. 765 Health Care Advance Directives (e.g., Living Wills)

Probate and Guardianship matters in Florida are administered pursuant to the following rules of procedure:

Probate Rules (2005 Edition)

October 1, 2004 Amendments to Probate Rules

2005 Biennial Report of the Florida Probate Rules Committee

Cover Letter
Report
Appendix A
Appendix B
Appendix C

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This is my list of Florida probate cases for 2005. Like any compilation, the criteria for inclusion is somewhat subjective, so I'm certainly not guaranteeing that I've identified every case that could conceivable be related to probate matters in Florida. However, if you think I've missed an important probate-related case that deserves wider notice, please let me know. As new cases are published, they'll be added to this list.

All of the cases listed below are also cross referenced by topic, so if you ever want to come back to that homestead case you remember seeing, you can simply jump to all of the homestead cases and scroll through those.

1. Parker v. Estate of Bealer, 890 So.2d 508 (Fla. 4 DCA January 5, 2005) (Practice & Procedure)

2. Jensen v. Estate of Gambidilla, 30 Fla. L. Weekly D578 (Fla. 4 DCA March 2, 2005) (Practice & Procedure)

3. Cohen v. Guardianship of Cohen, 30 Fla. L. Weekly D664 (Fla. 4 DCA March 9, 2005) (Will Construction Litigation)

4. Kutlesic v. Estate of Mervel, 30 Fla. L. Weekly D753 (Fla. 3 DCA March 16, 2005) (Practice & Procedure)

5. In re Guardianship of Schiavo, 30 Fla. L. Weekly D743 (Fla. 2 DCA March 16, 2005) (Contested Guardianship Proceedings)

6. Baumann v. Estate of Blum, 30 Fla. L. Weekly D842 (Fla. 2 DCA March 30, 2005) (Compensation Disputes)

7. McJunkin v. McJunkin, 30 Fla. L. Weekly D840 (Fla. 2 DCA March 30, 2005) (Contested Guardianship Proceedings)

8. Foust v. Maldonado, 30 Fla. L. Weekly D895 (Fla. 5 DCA April 1, 2005) (Contested Guardianship Proceedings)

9. Butler v. Guardianship of Peacock, 30 Fla. L. Weekly D889 (Fla. 5 DCA April 1, 2005) (Compensation Disputes)

10. Jordan v. Fehr, 2005 WL 831382 (Fla. 1 DCA April 12, 2005) (Will and Trust Contests)

11. Collinson v. Miller, 2005 WL 840188 (Fla. 2 DCA April 13, 2005) (Homestead Litigation)

12. Estate of Mahaney v. Keefe, 2005 WL 924264 (Fla. 2 DCA April 22, 2005) (Homestead Litigation)

13. Steadman v. Department of Management Services, 2005 WL 924314 (Fla. 5 DCA April 22, 2005) (Practice & Procedure)

14. Dempsey v. Dempsey, 2005 WL 954856 (Fla. 2 DCA April 27, 2005) (Spousal Elective Share Claims)

15. Whitener v. First Union National Bank of Florida, 2005 WL 1047268 (Fla. 5th DCA May 6, 2005) (Will and Trust Contests)

16. Estate of Morales v. Iasis Healthcare Corporation, 2005 WL 1107067 (Fla. 2 DCA May 11, 2005) (Practice & Procedure)

17. Rosoff v. Harding, 2005 WL 1163101 (Fla. 4th DCA May 18, 2005) (Dependent Relative Revocation Doctrine)

18. Blankfeld v. Richmond Health Care, Inc., 2005 WL 1226070 (Fla. 4th DCA May 25, 2005) (Practice & Procedure)

19. McMullin v. Beaver, 2005 WL 1278870 (Fla. 4th DCA June 1, 2005) (Practice & Procedure)

20. Perry v. Agnew, 2005 WL 1397427 (Fla. 2d DCA June 15, 2005) (Will and Trust Contests)

21. Cason v. Hammock, 2005 WL 1488650 (Fla. 5th DCA June 24, 2005) (Practice & Procedure)

22. Beseau v. Bhalani, 2005 WL 1488584 (Fla. 5th DCA June 24, 2005) (Wrongful Death Claims)

23. Wehrheim v. Golden Pond Assisted Living Facility, 2005 WL 1537448 (Fla. 5th DCA July 1, 2005) (Dependent Relative Revocation Doctrine)

24. Foreman v. Northern Trust Bank of Florida, N.A., 2005 WL 1553963 (Fla. 2d DCA July 6, 2005) (Compensation Disputes)

25. Global Travel Marketing, Inc. v. Shea, 2005 WL 1576244, 30 Fla. L. Weekly S511 (Fla. July 7, 2005) (Wrongful Death Claims)

26. Brunson v. McKay, 2005 WL 1677939 (Fla. 2d DCA July 20, 2005) (Wrongful Death Claims)

27. Martin v. Hacsi, 2005 WL 1842678 (Fla. 5th DCA August 5, 2005) (Wrongful Death Claims)

28. Department Of Children And Families v. Coll, 2005 WL 1959190 (Fla. 4th DCA August 17, 2005) (Contested Guardianship Proceedings)

29. Longmire v. Estate of Ruffin, 2005 WL 2016944 (Fla. 4th DCA August 24, 2005) (Creditors' Claims)

30. Karasek v. William J. Lamping Trust, 2005 WL 2086183 (Fla. 4th DCA August 31, 2005) (Will Construction Litigation)

31. Rasmussen v. Rasmussen, 2005 WL 2138710 (Fla. 2d DCA September 7, 2005) (Creditors' Claims)

32. McKean v. Warburton, 2005 WL 2155180 (Fla. September 8, 2005) (Homestead Litigation)

33. Scott v. Reyes, 2005 WL 2172231 (Fla. 2d DCA September 9, 2005) (Creditors' Claims)

34. Interim Healthcare of Northwest Florida, Inc. v. Estate of Ries, 2005 WL 2219224 (Fla. 4th DCA September 14, 2005) (Creditors' Claims)

35. Herskovitz v. Hershkovich, 2005 WL 2254003, 30 Fla. L. Weekly D2209 (Fla. 5th DCA Sept. 16, 2005) (Appellate Practice in Probate)

36. Sandler v. Jaffe, 2005 WL 2655765 (Fla. 4th DCA Oct. 19, 2005) (Practice & Procedure)

37. Valdes v. Estate of Valdes, 2005 WL 2861179 (Fla. 3d DCA Nov. 2, 2005) (Practice & Procedure)

38. Estate of Blount v. C.I.R., --- F.3d ----, 2005 WL 2838478 (11th Cir. Oct 31, 2005) (Practice & Procedure)

39. Harrell v. Snyder, 2005 WL 2899461 (Fla. 5th DCA Nov. 4, 2005) (Homestead Litigation)

40. DeMello v. Buckman, 2005 WL 2990487 (Fla. 4th DCA Nov 09, 2005) (Will and Trust Contests)

41. Snell v. Guardianship of Snell, 2005 WL 3159591 (Fla. 1st DCA Nov 29, 2005) (Contested Guardianship Proceedings)

42. Zoldan v. Zohlman, 2005 WL 3180190 (Fla. 3d DCA Nov 30, 2005) (Will and Trust Contests)

43. K.A.S. v. R.E.T., 2005 WL 3179763 (Fla. 2d DCA Nov 30, 2005) (Contested Guardianship Proceedings)

44. Sheets v. Palmer, 2005 WL 3403620 (Fla. 1st DCA Dec 14, 2005) (Will and Trust Contests)

45. Demayo v. Chames, 2005 WL 3180187, 30 Fla. L. Weekly D2692 (Fla. 3d DCA Nov 30, 2005) (Homestead Litigation)

46. Popp ex rel. Estate of Davis v. Rex, 2005 WL 3299727, 30 Fla. L. Weekly D2760 (Fla. 4th DCA Dec 07, 2005) (Will and Trust Contests)

47. Fleming v. Demps, 2005 WL 3481367 (Fla. 2d DCA Dec 21, 2005) (Practice & Procedure)

48. Wilson v. Robinson, 2005 WL 3499495 (Fla. 5th DCA Dec 23, 2005) (Contested Guardianship Proceedings)

49. Smith v. Smith, 2005 WL 3439889, 30 Fla. L. Weekly D2845 (Fla. 5th DCA Dec. 16, 2005) (Practice & Procedure)

50. Smith v. Smith, 2005 WL 3555852 (Fla. 5th DCA Dec 30, 2005) (Contested Guardianship Proceedings)

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Leave it to the Onion to add a little levity to a subject very much in the news lately. Check out this posting for a few lighthearted tips to keep in mind when preparing your Living Will.

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Magnolia Manor, Inc. v Siegel, 866 So.2d 142 (Fla. 5th DCA Feb. 13, 2004) (TRIAL COURT REVERSED)

In a case that has been pending for years, and was already the subject of a previously published appellate opinion in which the trial court was reversed in part and directed to allow Magnolia Manor, Inc., a nursing home where the decedent's parents resided before their deaths and the sole beneficiary of the decedent's 1978 will, to offer the 1978 will for probate (see First Union Nat'l Bank of Fla., N.A. v. Estate of Byron B. Mizell, 807 So.2d 78 (Fla. 5th DCA Feb. 2001) ), Orange County Circuit Court Judge W. Rogers Turner apparently was losing his patience when he dismissed with prejudice the petition filed on behalf of Magnolia Manor for apparently minor drafting errors committed by its counsel. The trial court dismissed the petition because the attorney who had prepared the papers had named himself as the "petitioner," which was unfortunate for all concerned because the filing attorney was not himself an "interested party" under Section 731.201(21), thereby prompting the court to dismiss his petition with prejudice. The 5th DCA reversed the trial court noting that although the "papers filed by [petitioner's counsel] were not models of clarity," a "fair reading of the papers [counsel] filed demonstrates that [he] was proceeding not for his own personal interest, but as a representative of Magnolia Manor."

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Lumbert v. Estate of Carter, 867 So.2d 1175 (Fla. 5th DCA Feb. 27, 2004) (TRIAL COURT REVERSED)

Molly Joy Carter ("Mom") executed a will on February 23, 1994 that left all of her $1.5 million estate in trust for her only child, Lisa Lumbert ("Daughter"), until Daughter reached certain ages, at which time the trust assets were to be distributed to her outright and free of trust.

Mom died and her will was admitted to probate on August 30, 2000. Fourteen months later Daughter died on October 15, 2001 at age 41. At the time of Daughter's death, most of Mom's $1.5 million estate was still being administered, so only about $100,000 had been transferred to Mom's testamentary trust for Daughter. Mom's brothers and sister argued that Article IV E. of Mom's trust for Daughter should control what happens with the rest of Mom's estate, which would result in most of Mom's estate going to them. Daughter's surviving husband argued that Articles IV D. of Mom's trust should control, which would, not surprisingly, result in most (i.e., two-thirds) of Mom's estate going to him.

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Dahly v. Dahly, 866 So.2d 745 (Fla. 5th DCA Feb. 13, 2004) (TRIAL COURT REVERSED)

The decedent had attempted to revoke portions of his will by "lining through the name of the designated personal representative, placing the word 'delete' over certain paragraphs in the will, and placing his signature with the words, 'Please draw up a new will making all changes noted here' on a note in the adjoining margin." Based on the decedent's apparent intent to revoke his will, Orange County Circuit Court Judge Lawrence R. Kirkwood ruled that the decedent's will and codicil were invalid and non-enforceable. The 5th DCA reversed on the grounds that the decedent's attempted revocation did not comply with the will-execution formalities contained in Section 732.502, or comply with the "revocation by writing" requirements contained in Section 732.505, or comply with the "revocation by act" requirements contained in Section 732.506.

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Angelus v. Pass, 868 So.2d 571 (Fla. 3d DCA Feb. 11, 2004)

Fifteen months after the court signed letters of administration appointing Henry Pass, a non-resident attorney, as co-personal representative of the decedent's estate, the decedent's daughter, Adriaan Angelus, filed a petition seeking to remove him as personal representative. Pass had initially filed a petition for administration that admitted he was a non-resident of Florida, but also claimed that he was the decedent's nephew. At the hearing on the petition to remove him, Pass admitted that he was the blood nephew of the decedent's former husband, not of the decedent. Consequently, Pass did not fall within the exception for blood relatives carved out in Section 733.304 to the general residency requirement imposed on Florida personal representatives. Notwithstanding this admission, the probate court dismissed the removal petition ruling that it was time barred by the three-month statute of limitations period established by Section 733.212.

The 3d DCA reversed the probate court's ruling on two grounds. First, the court noted that Florida Probate Rule 5.310 places the burden on the personal representative, as a fiduciary, to provide all interested parties with notice in the event the personal representative is not legally qualified to serve. In this case, the personal representative did not provide the requisite notice. Consequently, the 3d DCA held that applying the three-month statute of limitations period contained in Section 733.212 to bar the removal petition would render Rule 5.310 "meaningless" and "improperly shift the burden of discovery of an applicant's misrepresentations to the court and interested parties." Additionally, the court noted that Section 733.212 fell under Part II of Chapter 733 ("Commencing Administration"), and that Section 733.304 fell under Part III of Chapter 733 ("Preference in Appointment and Qualifications of Personal Representatives"). Finding that there was no "time limit" specified with respect to the qualification provisions found in Sections 733.304 and 733.3101 of Part III of Chapter 733, the court held that there was "no basis to engraft the three-month limitation of the commencing administration statute onto the explicit provisions of the qualifications statute . . . particularly where the applicant was never otherwise legally qualified to serve."

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Estate of Heid v. Heid, 863 So.2d 1259 (Fla. 5th DCA Jan. 9, 2004) (TRIAL COURT AFFIRMED)

Edward J. Heid died on December 18, 1999. Mr. Heid's surviving wife, Blanche A. Heid, sought to enforce her elective share rights against a trust holding real and personal property that had benefitted her predeceased husband. Circuit Court Judge Charles M. Holcomb dismissed the complaint with prejudice for failure to state a cause of action. Noting that Section 732.2155(1) explicitly limits Florida's expanded elective share rights to decedents dying on or after October 1, 2001, the 5th DCA affirmed the trial court's dismissal with prejudice.

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Traeger v. Credit First Nat. Ass'n, 864 So.2d 1188 (Fla. 5th DCA Jan. 9, 2004) (TRIAL COURT REVERSED)

The decedent was not survived by a spouse or minor children. The decedent's last will and testament devised her homestead property, a condominium unit in Ponce Inlet, Florida, to her adult step son and her adult natural daughter. The adult step son and her adult natural daughter, as co-personal representatives of the estate, petitioned the court to determine the homestead status of the condominium unit and asserted their belief that the property descended to both of them as protected homestead property. Circuit Court Judge C. McFerrin Smith III ruled that because the decedent's adult step-son occupied a lower class under Section 732.103, Florida's intestacy statute, his one-half share of the condominium property was not entitled homestead protection, while the surviving natural daughter's share of the condominium was entitled to such protection.

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A state district judge in Kerrville, Texas, signed a judgment ordering Baker Botts and Wells Fargo Bank Texas to pay $71 million in damages to former estate-planning client Kathleen C. Cailloux, a wealthy widow in Kerrville. The full article is available here. A previous article covering the same case is available here.

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October 1, 2004 Amendments to Florida Probate Rules

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Current Florida Probate Rules

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Great Southern Life Ins. Co. v. Porcaro, 869 So.2d 585 (Fla. 4th DCA Feb. 25, 2004) (TRIAL COURT REVERSED)

Palm Beach County Circuit Court Judge Thomas M. Lynch, IV granted summary judgement against a life insurance company in favor of a woman whose husband had "mysteriously disappeared" more than two years prior to when she first filed a petition in probate court to have him declared dead. The 4th DCA reversed on the grounds that a death certificate obtained through probate proceedings pursuant to Section 731.103 "no longer has evidentiary value outside the context of probate proceedings." As such, it was reversible error for the trial court judge to shift the burden of proving the decedent's death away from the widow and onto the insurance company based on the evidentiary value of the death certificate.

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Velde v. Velde, 867 So.2d 501 (Fla. 4th DCA February 25, 2004) (TRIAL COURT AFFIRMED)

At issue in this case was whether simply filing a petition for extension of time to make an elective share election was a "proceeding," and thus sufficient under old Section 732.212 to toll the then applicable four-month deadline date for making an election. Effective as of October 1, 2001, this statute was substantially revised and renumbered as Section 732.2135, which now explicitly states that a "petition for an extension of the time for making the election or for approval to make the election shall toll the time for making the election." However, because the decedent died on October 9, 2000, the court was required to apply old Section 732.212. Nonetheless, the 4th DCA noted that interpreting the tolling period under old Section 732.212 as only applying to litigation "would not give effect to the legislature's intent and would yield an absurd result." Consequently, the court held that the word "proceeding" should be "interpreted broadly enough" to encompass the extension petitions at issue in the case.

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In re Guardianship of J.D.S., 864 So.2d 534 (Fla. 5th DCA Jan. 9, 2004) (TRIAL COURT AFFIRMED)

Is a fetus a "person"? In the latest chapter of Florida's fetal rights debate, the 5th DCA held that in the context of Florida's guardianship law, the answer is no.

Orange County Circuit Court Judge Lawrence R. Kirkwood denied Jennifer Wixtrom's petition to be appointed guardian of the fetus of "J.D.S.," a 22-year old woman suffering from severe mental retardation that was pregnant as the result of a rape that occurred while she was in the care of the Department of Children and Families ("DCF"). Ms. Wixtrom's petition was denied and she appealed.

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