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

In this recent article on the SmartPros Website by Eva Lang, co-author of "The Best Websites for Financial Professionals," estate planning was identified as one of the niche practice areas covered by bloggers that should be of most interest to accountants. The Florida Probate Litigation Blog was one of only three estate planning blogs mentioned. Thanks!

• Email This
• Print
• Comments

Economic pressures loom large in all civil litigation. Those pressures are both the likely source of the underlying dispute and the driving force behind the course of the litigation and the manner in which the parties choose to negotiate settlement terms . . . or not. As I previously expressed here, two often opposing values shape the corporate trust market: traditional fiduciary responsibilities to trust beneficiaries and market-driven demands for increased profits.

Changing market conditions will only heighten that tension in the future. This July 8, 2005 study by Tiburon Strategic Advisors reported that Bank of America has $126 billion in personal trust assets under management, Wells Fargo $62 billion, PNC Bank $38 billion, JP Morgan Chase $26 billion, and Wachovia $25 billion. While those sums are huge, they don't tell the whole story. According to the study, banks are having trouble keeping up with changing market conditions.

• In 1991, brokerage firms accounted for only 5% of the personal and institutional market share. Today they account for 32% of that market.

• In 1998 there were only 117 non-bank companies offering trust services to consumers. In only five years that number grew nearly five fold to 564 companies.

How these dramatically changing market conditions will play themselves out in future litigation is anyone's guess, but they will undoubtedly have an impact.

Source: Estate Legacy Vaults

• Email This
• Print
• Comments

Global Travel Marketing, Inc. v. Shea, 2005 WL 1576244, 30 Fla. L. Weekly S511 (Fla. July 7, 2005) (Fourth DCA Reversed)

In a case that is sure to be of interest to personal injury attorneys (and the probate/guardianship attorneys they work with), the Florida Supreme Court reversed the Fourth DCA and held that an arbitration agreement incorporated into a commercial travel contract is enforceable against the minor's estate in a tort action arising from the contract. Although not central to the Supreme Court's ruling, the Court did provide the following helpful summary of current Florida law regarding when legal guardianships must be established to settle a minor's civil claims:

Under section 744.301(2), Florida Statutes (2004), parents, acting as the natural guardians of their minor children, [FN6] may settle their children's claims for amounts up to $15,000. A net settlement greater than $15,000 on behalf of a minor requires establishment of a legal guardianship. See § 744.387(2), Fla. Stat. (2004). If a legal guardian and a minor have potentially adverse interests, or if otherwise necessary, the trial court may, for a settlement greater than $15,000, and must, for a settlement greater than $25,000, appoint a guardian ad litem to represent the minor's interests. See § 744.301(4)(a); Fla. Stat. (2004). A presuit settlement on behalf of a minor requires court authorization, which may be given if the court determines that the settlement is in the minor's best interest. See § 744.387(1), Fla. Stat. (2004). Settlement of a pending claim also requires court approval. See § 744.387(3)(a), Fla. Stat. (2004).

FN6. For children of divorced parents, "the natural guardianship shall belong to the parent to whom the custody of the child is awarded." § 744.301(1), Fla. Stat. (2004).

• Email This
• Print
• Comments

Foreman v. Northern Trust Bank of Florida, N.A., 2005 WL 1553963 (Fla. 2d DCA July 6, 2005) (Trial Court Reversed)

For obvious reasons, compensation cases are always of interest to practitioners. In this latest Second DCA opinion addressing claims for attorneys fees by former counsel for a personal representative (see here for the prior Second DCA case this year involving a compensation dispute), the court reversed Sarasota County Judge Nancy K. Donnellan and held as follows:

• Former counsel for personal representative is entitled to fees for services he performed if they benefitted the estate . . . even if those services were rendered after the date he withdrew as counsel.
• Former counsel for personal representative is entitled to fees for the time he spent trying to obtain payment for services he rendered to the estate.
• Former counsel for personal representative is entitled to an award of reasonable expert witness fees. The Second DCA also noted that F.S. § 733.6175(4) "makes such an award mandatory if expert testimony is offered."

• Email This
• Print
• Comments

Wehrheim v. Golden Pond Assisted Living Facility, 2005 WL 1537448 (Fla. 5th DCA July 1, 2005) (Trial Court Reversed)

Most cases provide good examples of mistakes you want to avoid, for example, how mishandling homestead property can lead to unintended consequences (see here) or how to make sure you've served formal notice on a minor to cut off future litigation (see here). Sometimes a case comes along that simply reflects good, creative lawyering. This is one of them.

In this case the Fifth DCA grappled with the following scenario, which seemed ready made for litigation. The decedent executed wills in 1998, 1999, 2000 and 2002. All four wills completely cut out her three children. The 2002 will ended up primarily benefitting the assisted living facility the decedent resided in at the time of her death. This last change was a complete departure from the three previous wills the decedent had executed. When the decedent died her children and the assisted living facility favored under her 2002 will were (surprise!) soon locked in litigation. Orange County Judge Lawrence R. Kirkwood granted a summary judgment motion in favor of the assisted living facility thereby denying petitions filed by the children (1) challenging the decedent's 2002 will and (2) seeking removal of the personal representative. The Fifth DCA reversed the trial court and in the course of its decision shed light on some pretty creative lawyering.

• Email This
• Print
• Comments

This June 22, 2005 law.com article is a good example of how even the best Florida firms are not immune to malpractice claims challenging a firm's handling of a large estate. Two heirs to the Gannett newspaper fortune allege that West Palm Beach, Fla.-based Gunster Yoakley & Stewart colluded with its client JPMorgan Trust Co., a subsidiary of New York City-based JPMorgan Chase & Co., in running up fees for planning and administering the estate of their father, Charles McAdam Jr. of Wellington, who died in early 2003. That suit seeks no specific damage figure. But the plaintiffs maintain that Gunster's actions cost the estate almost $8 million in legally avoidable taxes alone.

• Email This
• Print
• Comments

Cason v. Hammock, 2005 WL 1488650 (Fla. 5th DCA June 24, 2005) (Trial Court Reversed)

Florida's probate code and procedural rules are designed to cut off possible litigation as soon as possible . . . whenever possible. Used wisely by an experienced probate attorney, these statutory and procedural rules are a powerful shield. On the other hand, not focusing on these seemingly mundane details exposes an estate to all the potential delays, expenses and rancor inherent to litigation.

In this case the estate was challenged on two fronts: petitions were filed seeking (1) removal of the personal representative and (2) revocation of the probate proceedings. Citrus County Judge Richard Howard denied both petitions on purely procedural grounds. In other words, the estate seemed to have successfully employed the "litigation shields" built into Florida's probate code and procedural rules. On appeal, the Fifth DCA snatched both victories away from the estate.

• Email This
• Print
• Comments