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

Beseau v. Bhalani, 2005 WL 1488584 (Fla. 5th DCA June 24, 2005) (Trial Court Reversed)

In the underlying wrongful death suit, the defendants prevailed after a jury trial. They then obtained an order awarding attorney's fees and costs against the personal representative of the decedent's estate . . . in her individual capacity. Apparently Volusia County Judge J. David Walsh thought this was OK because the personal representative was named "individually" in the complaint's caption and she never objected. The Fifth DCA made quick work of the case pointing out that regardless of what the complaint's caption may have said, the body of the complaint made clear that the lawsuit was brought on behalf of the estate, not the individual who happened to be serving as personal representative. And if you're not a party to the lawsuit, the court can't assess a judgment against you . . . even if you don't object.

• Email This
• Print
• Comments

Effective July 1, 2005, Florida enacted the Florida Uniform Disclaimer of Property Interests Act. Although the Florida statute is modeled on the Uniform Act, it is reported to contain substantial enhancements as well. The Wills, Trusts & Estate Prof Blog reported here the following comment by one of the statute's lead authors:

The variations are so significant that Adam Hirsch, the William and Catherine VanDercreek Professor of Law at Florida State University, says that "it may fairly be described as an alternative model, potentially worthy of contemplation by other state drafting committees."

• Email This
• Print
• Comments

Perry v. Agnew, 2005 WL 1397427 (Fla. 2d DCA June 15, 2005) (Trial Court Reversed)

Sometimes the best defense is a good offense. In this case, an individual trustee working out of his office in Boston, Massachusetts was sued by three beneficiaries, one of whom was a resident of Florida. The trustee moved to dismiss the complaint for improper venue under F.S. § 737.203. Charlotte County Judge Isaac Anderson, Jr. denied the trustee's motion to dismiss on two grounds, the most interesting of which was based on a finding that the trust's Florida choice-of-law provision exempted it from the application of F.S. § 737.203.

• Email This
• Print
• Comments (1)

The California based Estate Business and Tax Law Blog reported here that this litigation-related excerpt from the new book by Nancy Keates, The Wall Street Journal Guide to the Business of Life was in today's Wall Street Journal:

Don't surprise or confuse your heirs:

A contested will can make legal fees skyrocket. Making clear decisions, telling your heirs exactly what to expect, and being explicit in your will, will help reduce the risk of a legal fight. One common problem is a poorly drafted will that can lead to ambiguities about the deceased's wishes and, ultimately, increase the risk of legal fights. Another thing to watch out for are conflicting directives between the will and, say, a life insurance policy or a retirement account.

I couldn't have said it better myself.

• Email This
• Print
• Comments

As I previously posted here, "Dynasty Trusts" are estimated to hold up to $100 billion in assets. Dynasty trusts are only one subset of the trust options available to families. And as more and more of those families formalize their estate planning with the use of trusts for their children, more and more of those trusts will be targeted in divorce proceedings. Whether you represent a trust beneficiary considering a prenuptial agreement or a divorcing spouse attempting to shield his or her trust assets from Florida's equitable distribution regime (i.e., F.S. § 61.075), you need to know what the key issues are.

Step one, read the 1985 landmark Florida Supreme Court opinion Bacardi v. White, 463 So.2d 218 (Fla. Jan 31, 1985). Step two, read Colorado trust & estates attorney Marc A. Chorney's recent Real Property, Probate and Trust Journal article entitled "Interests in Trusts as Property in Dissolution of Marriage: Identification and Valuation."

• Email This
• Print
• Comments

Just in case you're even thinking about it, forget it if you're in Australia! This story reports on an Australian widow who has been refused the right to impregnate herself with her dead husband's sperm because she did not have his written consent to do so. The 36-year-old woman had been married to her husband for more than eight years when he was killed in a car accident in July 1998. Within 24 hours of his death the woman received court authority - and the consent of the dead man's parents - to have his sperm taken and stored at a Melbourne hospital. Victorian Supreme Court judge Kim Hargrave subsequently ruled that Australian law did not allow the taking of sperm or ova from the dead for the purpose of reproduction if the person had not consented in writing to the procedure before their death.

My guess is that it wont be long before some probate judge somewhere in Florida has to grapple with the same issue. Also, is this one more item to consider when we're working on a couples' estate plan?

Source: Legacy Matters

• Email This
• Print
• Comments (1)

McMullin v. Beaver, 2005 WL 1278870 (Fla. 4th DCA June 1, 2005) (Trial Court Reversed)

When a trust terminates as of a certain date, it is reasonable to assume that winding up the affairs of that trust may take some time after the termination date. But what if the "winding up" process includes filing a lawsuit after the trust termination date? Indian River Circuit Court Judge Robert A. Hawley ruled that was too much, and granted final summary judgement against the plaintiff trustee, finding that the trustee lacked standing to bring the action because the trust was already terminated. Although unclear from this opinion, apparently the defendants in this case argued that the trustee was attempting to unduly extend the winding up period for the trust by commencing litigation after the trust's termination date.

The Fourth DCA disagreed, and reversed the trial court finding that the trustee did in fact have standing to file his lawsuit after the trust termination date.

• Email This
• Print
• Comments

The March 2005 edition of the Yale Law Journal contains this interesting (perhaps even provocative) article by the noted Yale Law School Professor John H. Langbien. The logic underlying his thesis is somewhat circular in nature, although it is sure to warm the hearts of corporate fiduciaries (or more specifically, the "business development" folks at large banks). In a world dominated by an ever smaller group of financial-services conglomerates that maximize shareholder returns by cross selling an ever growing array of financial products and services to a single set of clients (the fancy word for this is "synergy"), it is no surprise that corporate fiduciaries seek to cross sell to their trust clients as well. The only problem is that they are hampered by these old fuddy duddy fiduciary self-dealing prohibitions that were developed within the context of a supposedly more genteel 18th century English business culture. The gist of Prof. Langbien's article is that if today's corporate environment conflicts with two-century's worth of Anglo-American fiduciary common law, then there must be something wrong with the law (see what I mean by the circular nature of this argument). Prof. Langbien proposes a technical fix that could be easily incorporated into state statutory regimes governing trustees and other fiduciaries (e.g., personal representatives of estates).

• Email This
• Print
• Comments

The more intellectual firepower is applied to examining and improving Florida's probate-related laws, the better off we all are. So it is good news indeed for Florida practitioners that according to this press release Adam Hirsch, a leading authority on wills and trusts, has been named the William and Catherine VanDercreek Professor of Law at The Florida State University College of Law.

Over the past two years, Professor Hirsch worked as a consultant to the subcommittee of the Real Property Probate and Trust Section of The Florida Bar that drafted a comprehensive revision to Florida's statute covering disclaimers of inheritances. The Florida Legislature recently enacted the statute, and it awaits the governor's signature.

Source: The Wills, Trusts & Estates Prof Blog

• Email This
• Print
• Comments

Because elder abuse claims often end up as part of the victim's probate estate, I thought this NPR story might be interesting to readers of this blog.

Source: The Elder Law Prof Blog

• Email This
• Print
• Comments

This article reports on a conflict between divorced parents over the remains of their son, who was killed in Iraq. Because of the growing number of such cases, Shelley Berkley, D-Nev., introduced this legislation earlier this month that would require soldiers to designate someone to handle their funeral arrangements. According to this article, the Department of Defense currently has the following policy in place:

Spouses of slain service members have first claim to the remains. If the victim is unmarried, the body goes to children over 18 in order of age. If the victim has no children over 18, remains go to parents in order of seniority, unless one parent was granted sole legal custody.

Source: Death & Taxes - The Blog

• Email This
• Print
• Comments