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

As reported in Politician's Heirs Snare Thelen Reid in Complex Estate Battle, a New York firm successfully opposed a subpoena to turn over its files in connection with contested probate proceedings in Texas because the estate hadn't paid its bills.  The basis of the New York firm's retaining lien was described as follows in the linked-to piece:

In a Feb. 9 decision, Manhattan Supreme Court Justice Carol Robinson Edmead said Thelen Reid was entitled to a retaining lien allowing it to keep documents relating to Martinez's estate pending payment of outstanding legal bills. She quashed Gonzalez's deposition subpoenas on the same grounds.

The judge noted that, while all the firm's bills had been paid while Martinez was alive, Gonzalez had retained the firm after his death. Justice Edmead ruled that Gonzalez had retained Thelen Reid on behalf of Martinez's estate, not in her individual capacity.

"Since the Law Firm's rendition of services at the request of Ms. Gonzalez was made on behalf of the Estate of Dr. Martinez, such services entitle the Law Firm to a common-law retaining lien on any of the Estate's books, papers, money and securities which are in the attorney's possession," the judge wrote in In the Matter of the Application of Letizia Martinez de Gonzalez, 114877/06.

Florida Law: Ethics Opinion 88-11

Florida law also recognizes an attorney's right to a retaining lien over client files when bills go unpaid.  Here's how Florida Bar Ethics Opinion 88-11 summarized Florida law on this point:

Many attorneys are unaware that in Florida a case file is considered to be the property of the attorney rather than the client. Dowda and Fields, P.A. v. Cobb , 452 So.2d 1140, 1142 (Fla. 5th DCA 1984); Florida Ethics Opinion 71-37 [since withdrawn]. Under normal circumstances, an attorney should make available to the client, at the client's expense, copies of information in the file where such information would serve a useful purpose to the client. Opinion 71-37 [since withdrawn].


*     *     *     *     *

Florida common law recognizes two types of attorney's liens: the charging lien and the retaining lien. The charging lien may be asserted when a client owes the attorney for fees or costs in connection with a specific matter in which a suit has been filed. To impose a charging lien, the attorney must show: (1) a contract between attorney and client; (2) an understanding for payment of attorney's fees out of the recovery; (3) either an avoidance of payment or a dispute regarding the amount of fees; and (4) timely notice. Daniel Mones, P.A. v. Smith, 486 So.2d 559, 561 (Fla. 1986). The attorney should give timely notice of the asserted charging lien by either filing a notice of lien or otherwise pursuing the lien in the underlying suit. The latter approach is preferred.

Unlike a charging lien, a retaining lien may be asserted with respect to amounts owed by a client for all legal work done on the client's behalf regardless of whether the materials upon which the retaining lien is asserted are related to the matter in which the outstanding charges were incurred. A retaining lien may be asserted on file materials as well as client funds or property in the attorney's possession, and may be asserted whether or not a suit has been filed. Mones, 486 So.2d at 561.

• Email This
• Print
• Comments

In stark contrast to the glowing reviews enjoyed by Attorney Richard C. Milstein (see here), most observers have been less than impressed with Judge Larry Seidlin.  The following excerpts from Florida Judge in Anna Nicole Smith Case Is Vilified as 'Weepy Wacko' sum up the national consensus:

From the state that brought you the hanging chad, now comes the crying judge.


Some members of the bar and other court-watchers are cringing over the way Judge Larry Seidlin wept -- no, sobbed -- on live, national TV as he announced a ruling Thursday in the dispute over where Anna Nicole Smith should be buried.

Some are accusing the brash former New York cab driver of showboating for the cameras, or worse, auditioning for his own courtroom TV show, with his one-liners, his personal asides and his smart-alecky Bronx delivery during the six-day hearing.

They say that he let the hearing drag on way too long, that he made inappropriate jokes for a dispute over a body, that he acted as if it were all about him.

"He's like Judge Judy's wacky little brother," legal analyst Jefrey Toobin quipped on CNN.



The New York Post called him a "Weepy Wacko," while the The New York Daily News asked, "How Low Can This Judge Go?" and referred to him as "Blubbering Seidlin." One of Miami's most celebrated defense attorneys, Roy Black, said of the circus-like scene in Seidlin's courtroom: "I sort of think it gives circuses a bad name."

• Email This
• Print
• Comments

Baker Botts, L.L.P. v. Cailloux, --- S.W.3d ----, 2007 WL 460643 (Tex.App.-San Antonio Feb 14, 2007)

This case, which I previously wrote about here, reminds me of an excellent ethics seminar I once attended where the speaker said something that has stayed with me to this day.  When it comes to representing multiple clients with conflicting interests, the attorney essentially assumes the economic risk of all clients being 100% satisfied with the case.  Even if you do everything right, if one of the clients is unhappy at the end of the day, the attorney might end up paying for that dissatisfaction - regardless of actual fault.

Here, the estate planning attorneys at Baker Botts, lead by nationally-known estate planner and speaker Stacy Eastland (currently Managing Director of Goldman Sachs & Company (Houston)), seem to have done everything right.

• They identified the potential conflict of interest.
• Disclosed the conflict to the clients and received written waivers.
• They severed their relationship with one of the clients once it became clear the clients were no longer interested in pursuing a mutually-agreed-upon course of action.

See ACTEC Commentary on Model Rule of Professional Conduct 1.7.


During the course of the engagement, one of the clients grew unhappy with the results, he looked around for the cause of his dissatisfaction, then sued the attorneys.  As recounted in the linked-to appellate opinion, the jury found that the attorneys had in no way caused economic harm to their clients:

A jury . . . found that . . .  [client] had zero "lost income" damages and zero "economic loss" damages as a result of [the conflict of interest].

This same jury entered a $65.5 million verdict against the defendants, which was increased to $71 million by the trial judge to factor in prejudgment interest!  The sin the jury was apparently most concerned with was the conflict of interest, and the attorneys were made to pay - big time - even though they had cause no economic harm to their clients.

Lesson learned:

Don't guarantee the deal.  Even if you do everything right, and even if you win once the client sues you - representing multiple clients with conflicting interests can morph into a nightmare.  Although Baker Botts won this round (see press release), this lawsuit must have been gut wrenching for the professionals involved - and it's not over yet - the plaintiffs say they're going to appeal (see here).

• Email This
• Print
• Comments

Juega v. Davidson, --- So.2d ----, 2007 WL 465523 (Fla. 3d DCA Feb 14, 2007)

[THIS OPINION WAS WITHDRAWN AND SUBSTITUTED HERE]

Who has standing to sue and when is a recurring them in trusts and estates litigation.  In probate proceedings, the issue is framed in terms of who is an "interested person,"  In non-probate trust litigation, the issue is governed by Florida Rule of Civil Procedure 1.210(a).

In this case an estate administrator appointed as part of estate proceedings in Spain filed a 1994 lawsuit in Miami, Floria.  The case apparently dragged on for years.  In 2003, the Spanish estate was closed on the estate administrator was discharged.  Having acquired a taste for U.S. litigation, in 2004 the foreign administrator proceeded with his case in Miami after having been discharged in Spain.

The trial court dismissed the discharged-foreign administrator from the lawsuit on lack-of-standing grounds.  The 3d DCA agreed, providing the following helpful guidance:

Florida Rule of Civil Procedure 1.210(a) states, in pertinent part:

Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought.

By its express wording, Rule 1.210(a) enumerates six categories of persons who may bring an action for the benefit of another without joining the real party in interest. However, the real party in interest may prosecute in his own name as well even if one of those six categories of persons is available. See Estate of Morales v. Iasis Healthcare Corp., 901 So.2d 965, 966 (Fla. 2d DCA 2005) (“[i]n cases involving claims made by ... an estate, there are two parties: the estate and the personal representative”). Here, [foreign administrator] ceased to be the estate administrator and the Estate ceased to be the real party in interest in 2003.

Because [foreign administrator] ceased to act in his representative capacity in 2003, he did not have standing in 2004 to raise claims on behalf of the estate.

• Email This
• Print
• Comments

It couldn't happen to a better guy.  In the midst of all the antics surrounding the proceedings to determine custody of Anna Nicole Smith's body one calm professional stood out: Akerman Senterfitt’s Richard C. Milstein.

I know Richard only casually from bar functions.  However, he's known as a true gentlemen and professional in every sense of the word.  Richard makes us all look good.  So perhaps it shouldn't be surprising that he's getting some great national press in Akerman Attorney Is 'the Calm' in Media Storm Over Anna Nicole Smith Case.  Here are a few excerpts from the linked-to story:

Seidlin granted the power to decide where Smith will be buried to Richard C. Milstein, an Akerman Senterfitt attorney who was appointed last week as guardian ad litem for Smith's 5-month-old daughter, Dannielynn Hope Marshall Stern.

*     *      *     *     *

Milstein, who has avoided the spotlight, left the courthouse through a side exit and went straight to his car without making any statements.

Throughout the hearings the dapper and mild-mannered Milstein seemed above the fray as the proceedings quickly degenerated into a circus-like atmosphere.

*     *      *     *     *

Those who know Milstein said he was the perfect lawyer for the job.

"He is always the calm in the middle of many storms," said Milstein's friend Jorge Mursuli, the executive director of People for the American Way in Florida. "What a perfect choice amongst the circus to have someone so deeply committed to child-advocacy issues and not interested in self-serving press."

Miami attorney Valdespino said Milstein "wouldn't be influenced by the glitz."

• Email This
• Print
• Comments

Harding v. Rosoff, --- So.2d ----, 2007 WL 461381(Fla. 4th DCA Feb 14, 2007)

This is the second appellate opinion arising out of this piece of probate litigation.  I wrote about the first appeal here.  In this sad case a 95 year old woman inadvertently failed to comply with the technical  requirements necessary to effectively exercise a power of appointment she had under a trust created by her brother over 30 years ago.

The default beneficiary under brother's trust sued the probate estate over the attempted exercise of the power of appointment and won.  Rather than being content with this win, default trust beneficiary then sued the personal representative of sister's estate for attorneys' fees.  The trial court said NO WAY, and the 4th DCA agreed as follows:

• Court: You can't sue someone else's personal representative for breach of fiduciary duty:

The personal representatives argue that there can be no surcharge, which is a charge against a fiduciary to compensate a beneficiary for the breach of fiduciary duty, Merkel v. Guardianship of Jacoby, 862 So.2d 906 (Fla. 2d DCA 2003), because there was no fiduciary duty to Harding. They point out that they are fiduciaries only of the Teresa Rosoff estate and that Harding is not a beneficiary of that estate. Harding is a beneficiary of the Molinari Trust, but the personal representatives are not fiduciaries of the trust. We are not persuaded by Harding that there is a fiduciary duty to her, but we need not decide that issue because the pursuance of the litigation by the personal representatives was consistent with the testator's intent. Although they lost and we affirmed, we noted that “Teresa's apparent intent has been thwarted.” Rosoff, 901 So.2d at 1010. The trial court was correct in finding no impropriety by the personal representatives.

• Court: You don't get fees for thwarting the testatrix's intent:

Harding also contends that she should have been awarded attorney's fees and costs for prevailing in the litigation under section 733.106, Florida Statutes (2005), because the litigation benefited the estate. In re Estate of Udell, 501 So.2d 1286 (Fla. 4th DCA 1986). Harding has cited no cases, however, which would support her theory that there was a benefit to the estate under these specific facts. She relies on In re Estate of McCune, 223 So.2d 787 (Fla. 4th DCA 1969), in which we stated that services which carry out the intent of the testator as expressed in the will are compensable from the estate. As we previously noted, however, this litigation thwarted the testator's intent. Harding also cites Robinson v. Robinson, 805 So.2d 94 (Fla. 4th DCA 2002), in which this court affirmed an award of attorney's fees to a beneficiary who successfully reformed a trust. In Robinson, however, the fees were awarded from the trust, not the estate. Under these facts, in which the litigation determined only who would be the beneficiary of the Molinari Trust, the trial court did not err in finding that there was no benefit to the estate.

• Email This
• Print
• Comments

Broward Circuit Court Judge Larry Seidlin surprised everyone by ruling from the bench today.  Here's the latest from the Boston Globe:

FORT LAUDERDALE, Fla. --Anna Nicole Smith will be buried in the Bahamas, alongside her dead son, it was announced Thursday after a tearful judge left the decision up to the attorney for the model's baby daughter.

Richard Milstein, the court-appointed lawyer for 5-month-old Dannielynn, announced the plans not long after a judge gave him control of Smith's final resting place. He gave no timeframe for the burial.

*     *     *     *     *
The judge, who choked up frequently and sometimes blubbered as he explained his decision, compromised and gave custody to Milstein. And the judge made it abundantly clear what he felt should be done.

"I want her buried with her son in the Bahamas," he said through tears. "I want them to be together."

By the way, choking up, "blubbering," speaking through tears, is not exactly the court-room demeanor one would expect from a veteran trial judge.  But then again, Judge Seidlin's performance in this case has become a topic of discussion all on its own.  Here's what this Miami Herald report had to say:

He's become something of a national spectacle for his role as Anna Nicole Smith's probate judge, with his colleagues snickering about his courtroom demeanor and with national legal analysts deriding his professional judgment.

But Broward Circuit Court Judge Larry Seidlin has been taking it all in stride, keeping in daily contact with the county's chief judge and refusing to let the criticism stop him from long soliloquies and other courtroom antics.

Thanks to Alachua, FL attorney Jane E. Hendricks for alerting me to this latest breaking news.

• Email This
• Print
• Comments

Matsumoto v. American Burial and Cremation Services, Inc., --- So.2d ----, 2006 WL 3733310, 32 Fla. L. Weekly D26 (Fla. 2 DCA Dec 20, 2006)

In light of the ongoing litigation involving conflicting claims for custody of Anna Nicole Smith's body (see here), the linked-to case seems especially timely (thanks to Alachua, FL attorney Jane E. Hendricks for pointing it out to me).

The linked-to case answers two questions that can be expected to come up from time to time in a probate practice.  After the publicity the Anna Nicole Smith case is bringing to litigation involving control of a decedent's body, these questions may come up with more frequency.

• Question 1: Can you sue someone for causing you emotional pain and suffering over the disposition of a family member's dead body?  Answer: YES.  Here's how the 2d DCA described this particular tort:

Ms. Matsumoto sued the appellees in June 2003, claiming that they tortiously interfered with the body of her deceased father, Lenzo Chavis. Her pleading and her trial theme more accurately reflect a tort claim for outrageous conduct causing severe emotional distress. See, e.g., Smith v. Telophase Nat'l Cremation Soc'y, Inc., 471 So.2d 163 (Fla. 2d DCA 1985) (acknowledging Florida's recognition of tort of intentional infliction of emotional distress caused by extreme and outrageous conduct in handling of cremation); Williams v. City of Minneola, 575 So.2d 683, 690-91 (Fla. 5th DCA 1991) (holding that cause of action lies in tort for infliction of emotional distress by outrageous conduct involving dead body); Baker v. Fla. Nat'l Bank, 559 So.2d 284, 287 (Fla. 4th DCA 1990) (recognizing that claim for intentional infliction of emotional distress and “tort of outrageous conduct” are the same claim).

• Question 2:  Does a funeral home have an affirmative duty to find the next of kin with highest priority under Florida law when seeking authority to cremate a decedent's body?  Answer: NO. According to the 2d DCA Florida Statutes section 470.002(18) [now repealed] specifies the priority of persons who may direct the disposition of the decedent's body.  Under this statute, a decedent's child has priority over a brother or sister.  In the linked-to case the decedent's estranged daughter claimed the funeral home should have tried to locate her prior to following the directions of the decedent's brother.   The 2d DCA rejected her claim as follows:

Ms. Matsumoto .  .  .  urges us to graft upon the statute a requirement that the funeral home undertake a diligent search for the closest next of kin if their whereabouts are unknown by those lower in priority under the statute. She suggests that the funeral home must make a good faith effort, similar to that required for constructive service of process, to locate the unavailable next of kin. See § 49.041(1), Fla. Stat. (2002). The statute does not impose a due diligence requirement on funeral homes. Nor does it require funeral homes to provide others with higher priority notice of a family member's death. We decline to impose such obligations on the funeral home.

• Email This
• Print
• Comments (1)

EHQF Trust v. S & A Capital Partners, Inc. , --- So.2d ----, 2007 WL 45838 (Fla. 4th DCA Jan 09, 2007)

I wrote here about a 2006 opinion out of the 5th DCA addressing Florida Rule of Probate Procedure 5.030(a), which, subject to limited exceptions, requires Florida guardians and personal representatives to be represented by counsel.  There's no such rule for Florida trustees.  However, the 4th DCA came to the same conclusion with respect to trustees based on the following rationale:

The notice of appeal filed by appellant, a trust, was not signed by an attorney licensed to practice law in Florida. Section 454.23, Florida Statutes (2006), prohibiting the unlicensed practice of law, provides no exception for representation of a trust. Although Florida has not previously addressed the issue, other states have concluded that a trustee cannot appear pro se on behalf of the trust, because the trustee represents the interests of others and would therefore be engaged in the unauthorized practice of law. Curry v. Kilgore, 2004 UT App. 112 (Utah Ct.App.2004); Ziegler v. Nickel, 64 Cal.App.4th 545, 75 Cal.Rptr.2d 312 (Cal.2d 1998); Life Science Church v. Shawano County, 221 Wis.2d 331, 585 N.W.2d 625 (Wis.Ct.App.1998); Mahoning County Bar Ass'n v. Alexander, 79 Ohio St.3d 1220, 681 N.E.2d 934 (Ohio 1997); Beaudoin v. Kibbie, 905 P.2d 939 (Wyo.1995); Back Acres Pure Trust v. Fahnlander, 233 Neb. 28, 443 N.W.2d 604 (Neb.1989); In re Ellis, 53 Haw. 23, 487 P.2d 286 (Haw.1971).

It is therefore ordered that this appeal will be dismissed unless appellant files an amended notice of appeal signed by an attorney licensed to practice law within twenty days of this order. This appeal is stayed pending compliance with this order.

• Email This
• Print
• Comments

The NY Times published an interesting Op-Ed piece by Stephanie Coontz entitled Illegitimate Complaints that does a good job of highlighting how “traditional” family values were historically very harsh on out-of-wedlock or “bastard” children. Generally accepted notions of the rights of lineal descendants – irrespective of whether or not the parents were married – have changed dramatically over the last hundred years or so.

The harsher aspects of the common law dealing with an illegitimate child have been eliminated in all states, primarily through the application of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution (see here for discussion).  Florida codified its approach to persons born out of wedlock in F.S. 732.108.

Here are a few excerpts from the linked-to NY Times piece:

PITY poor little Dannielynn, just 5 months old and already the potentially multimillion-dollar prize in a paternity battle waged by three of the unsavory men who partied with her mother, Anna Nicole Smith, in the last years of her troubled and tawdry life. There’s an even creepier fourth potential candidate: Ms. Smith’s half-sister claims that Ms. Smith’s late husband, the nonagenarian billionaire J. Howard Marshall, left behind frozen sperm. And now Ms. Smith’s estranged mother has also rushed forward to claim custody of the baby. Could anything be worse for this little girl than to be at the center of such a media circus or to end up with one of these characters?

Actually, yes. For thousands of years, the future of a child born out of wedlock was of absolutely no interest to anyone, especially if she was an orphan. The only people likely to take her in were people who needed free labor on their farms or required a child “helper” small enough to run under dangerous factory machines piecing together broken threads or picking up dropped objects.

For 500 years, British law, on which American law was modeled, held that a child born to an unwed mother was a “filius nullius” — literally, a child of no one, entitled to support from no one. Little Dannielynn would not have had a right to her mother’s inheritance, much less a legal claim to receive support from the family of either her deceased mother or her father.

• Email This
• Print
• Comments

Hernandez v. Gil, -- So.2d. ---, 2007 WL 466029 (Fla. 3d DCA Feb 14, 2007) [Attorney Interview]

Drafting a settlement agreement is always part science, part art.  The drafting needs to be technically solid.  The economic aspects of the deal need to be clearly worked out, although this issue is usually pretty simple, no matter how many zeros are after the dollar sign (party A pays part B $___ to settle).  The less tangible aspect of the deal - but probably the most important contribution made by counsel - is anticipating everything that can go wrong and working defenses against these contingencies into the deal. 

The Art of the "General Release"

The linked-to opinion is an example of superb lawyering anticipating and building defenses against an unscrupulous litigant into a global settlement agreement.  In this case son challenged probate of his father's will by suing his mother and a friend of the family, who were dad's PRs and trustees of dad's trust.  Son settles case against dad's estate in exchange for certain estate assets and the exchange of general releases.  Son then breaches deal by suing again when mom passes away. 

Fortunately the lawyers negotiating the original settlement deal had anticipated this turn of events in the form of general releases that shielded the good guys from this type of attack.  Here's how the 3d DCA described the three categories of general release at issue in this case:
 

• First general release: shield mom's estate from future attack by disgruntled son:

Pursuant to the clear and unambiguous language of the first general release executed by Hernandez, Hernandez agreed to release his mother, Doña Alicia, from any and all causes of action and to renounce any right in Doña Alicia's estate, except to the extent, if any, that Doña Alicia named him a beneficiary under her will. Further, if not named as a beneficiary under his mother's will, Hernandez agreed not to contest the validity of the will and waived his right to enter an appearance in any probate proceeding pertaining to his mother's estate and, to the extent that he would make such challenge or enter any such appearance, he would be deemed to have predeceased his mother.

• Second general release: shield the trustee from future attack by disgruntled son:

In a second analogously termed release, Hernandez agreed to renounce any right, title, or interest, vested or contingent, he had, has, or may have in the future in the Trust and in any other trust in which either of his parents was a settlor or beneficiary.

• Third general release: shield family friend from individual future attack by disgruntled son:

In a third release, Hernandez agreed to release Gil, individually, and in her capacity as executrix and personal representative of Don Manolo's estate, and in her capacity as the trustee of the Trust, from any and all claims whatsoever, in law or in equity, which he ever had, has, or may have in the future.

Lesson learned?

Good drafting worked . . . to an extent.  Although no one could physically prohibit disgruntled son from breaching the terms of the settlement deal, the general releases he signed provided effective tools for shielding against his future attacks.  Here's how the 3d DCA described how disgruntled son breached original deal and how the general releases described above worked to thwart him:
 

The record indicates that Doña Alicia died in July 2003 and did not name Hernandez as a beneficiary under her last will and testament. Not surprisingly, Hernandez entered an appearance in the probate proceedings of his mother's estate and filed a petition challenging the administration of her will, in clear contravention of the express terms of the GSA. Hernandez also filed a lawsuit against Gil, individually, for tortious interference with his rights to his mother's inheritance. Pursuant to the clear and unambiguous language of the GSA and the corresponding releases, Hernandez bargained away his right to challenge his mother's will and in the event that he did so, he would be deemed to have predeceased his mother. Having challenged his mother's will, Hernandez is deemed to have predeceased her and therefore, has no right to any inheritance from his mother.

Appellate Briefs:

• Initial Brief of Appellant Nelson Julio Hernandez

• Answer Brief of Appellee Maria De Los Angeles Gil, as Personal Representative

• Email This
• Print
• Comments (2)

I'm rarely able to physically go to these meetings, but I always find time to read the excellent materials circulated to members prior to each meeting.  I also find these materials to be the best way to keep track of new legislation affecting the trusts and estates practice area.  If you read Jack Falk's e-mail and the attached Agenda and Minutes for this meeting you'll find discussions related to the following topics, all of which should be of interest to any Florida trusts and estates litigator:

• Fiduciary Lawyer-Client Privilege: Approved by EC [ITEM 3]
• Arbitration clause in a will or trust is enforceable: Approved by EC [ITEM 3]
• Exculpatory clause in a will: Approved by EC [ITEM 3]
• Payment of trustee’s fees from trust assets: Pending approval of EC [ITEM 4]
• Which Orders Can Be Appealed in a Probate Proceeding? [ITEM 5] (see White Paper)
• Revisions to Rule 1.525 concerning 30 day time limit for filing a motion for attorneys’ fees [ITEM 6]
• ACTEC Model Arbitration Legislation. [ITEM 7]

• Email This
• Print
• Comments

As the Anna Nicole Smith saga takes its latest bizarre twist inside a South Florida courtroom, prominent South Florida trusts and estates litigators - Richard Milstein & Shane Kelley - were tapped by Broward County Judge Larry Seidlin to help him sort through the conflicting claims for custody of Anna Nicole Smith's body.  CNN reported in In court: Who will bury Anna Nicole Smith? on these latest developments.  For those of us practicing in South Florida, it's fun to spot our colleagues in the news.  Here's an excerpt from the linked-to story:

FORT LAUDERDALE, Florida (CNN) -- Anna Nicole Smith wanted to be buried in the Bahamas, next to her son, and bought a burial plot there, according to attorneys for her longtime companion, Howard K. Stern.

Smith's estranged mother, Vergie Arthur, wants to take the body home to Texas to be buried with family members.

The two sides faced off in Broward County Circuit Court on Thursday at a probate hearing that bounced from custody of the body to DNA sampling to whether a baby can be considered next of kin under Florida law.

With several attorneys arguing loudly around a conference table, Judge Larry Seidlin tried to sort through a tangle of legal arguments and competing interests.

. . . . .

Some progress was made: The judge appointed a guardian, Miami attorney Richard Milstein, to protect the interests of Smith's infant daughter, Dannielynn. He also appointed an administrator, Shane Kelley, a Fort Lauderdale lawyer, to sort through the competing interests and recommend who will bury Smith, and where.

An evidentiary hearing is scheduled for Tuesday.

Smith's body is being kept under refrigeration at the medical examiner's office in Dania Beach. She is likely to be embalmed there as early as Friday. But any decision about releasing her body for burial isn't likely until next week at the earliest.

So who gets the body under Florida law?

What law applies will likely turn on what jurisdiction Anna Nicole Smith is deemed to have been a resident of when she died.  I don't think Florida is in the running, but assuming somehow Florida law ends up governing the substantive rights at play here, then the 4th DCA's 2005 opinion in Cohen v. Guardianship of Cohen, 30 Fla. L. Weekly D664 (Fla. 4 DCA March 9, 2005) will likely determine the outcome.  I wrote about this opinion here.

Anna Nicloe Smith apparently executed a will prior to her death (see here).  However, even if her will speaks to her wishes regarding her burial, the inquiry does not necessarily end there.  In Cohen the 4th DCA held that a testator's will does not control where he or she is buried if there's clear and convincing evidence reflecting that the testator's true intent was to be buried elsewhere.  In other words, the parties need to present "clear and convincing" evidence to substantiate their claims to Anna Nicole Smith's body.  Here's how the Cohen court stated the rule:

[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.

I assume whatever ruling is entered by Judge Seidlin it will get appealed.  If it is, the appeal will be heard by none other than the 4th DCA, the same appellate court that decided Cohen.  Yes, Anna Nicole Smith's on-going contributions to U.S. probate-litigation jurisprudence continue unabated (I wrote here about her May 2006 U.S. Supreme Court win).

P.S.  For additional commentary, see Anna Nicole Smith - Guidance for Burial Disputes (published in Steve Leimberg's Estate Planning Newsletter).  As an extra bonus, this linked-to item also contains a link to Anna Nicole Smith's just-released will.

• Email This
• Print
• Comments (1)

Lawyers USA published this article discussing many of the reasons Florida is becoming an increasingly popular destination for the wealthy seeking lower taxes and greater asset protection.  For an alternate race-to-the-bottom angle on Florida's increasing popularity see Marching Off a Cliff.

There's nothing particularly new in the linked-to Lawyers USA article for practicing Florida trusts and estates attorneys.  However, I thought the introductory paragraphs were fine examples of Florida boosterism, and gladly reprint them below:

People are flocking to the Sunshine State in greater numbers than ever, seeking asset protection and a decrease in taxes, estate planners tell Lawyers USA.


"It's a tidal wave," said Bruce M. Stone, a 32-year estate planning veteran at Goldman Felcoski & Stone in Coral Gables, Fla. "We've noticed a huge increase in the numbers of wealthy clients claiming Florida as a domicile."

"We're seeing a significant uptick in the number of people relocating, or establishing themselves as Florida residents," agreed Donald R. Tescher, an estate planning and tax specialist at Tescher Gutter Chaves Josepher Rubin Ruffin & Forman in Boca Raton, Fla. "We've been really busy."

Clients with a second home in Florida are establishing it as their primary residence, and others are simply moving all of their assets into the state, he said.

Jonathan B. Alper, a solo in Heathrow, Fla. who specializes in asset protection, said that lawyers and clients are increasingly taking advantage of Florida's favorable legal climate because "technology gives them the ability to communicate out of state so easily. Now it's possible to live in Florida but run a business up north or stay in contact with family in California."

• Email This
• Print
• Comments

Anna Nicole Smith’s tragic death (see here) put a spotlight once again on the record-shattering trust-and-estates litigation she and her former step-son, E. Pierce Marshall (he died in 2006), waged over the vast estate of her former husband, J. Howard Marshall. As I've previously written about on this blog, this case resulted in a U.S. Supreme Court decision, Marshall v. Marshall, viewed by many (including me) as opening the federal court room doors to trust-and-estates litigation to an extent we've never seen before (see here).

So the timing of an article appearing in the January/February edition of the ABA’s Probate and Property magazine written by California trust-and-estates litigator Dominic J. Campisi was almost eerily prescient. This article deserves notice by trust-and-estates litigators everywhere. In Marshall v. Marshall -- Rashomon Revisited Campisi does a good job of articulating why this case should be viewed as part of a general trend towards greater federal court involvement in trust-and-estates disputes. Here’s the conclusion to Campisi’s article, summing up his views nicely:

J. Howard Marshall, who had taught wills and trusts at Yale Law School, certainly has provided a most intriguing case study for future generations of law students and practitioners. The price of a unanimous decision such as Marshall is that many contentious issues are left unresolved in order to reach a common decision. The lower courts continue to wrangle over attempts to use federal diversity jurisdiction for probate and trust disputes based on the general conclusions in Marshall.

In Hoffman v. Sumner, No. 05-C7114, 2006 WL 1444677 (N.D. Ill. May 18, 2006), the court followed Marshall in denying remand of a diversity case involving a dispute over a joint tenancy asset, holding that the dispute did not violate the probate exception, and rejected the suggestion that it should abstain in favor of the local probate court. The bankruptcy court in In re Enron Corp. v. Whalen, 351 B.R. 305 (Bankr. S.D.N.Y. 2006), held that an action to recover an allegedly improper transfer from the estate of a decedent was not covered by the probate exception because there was no interference with the res in the possession of the state court. The court explained that any federal judgment could subsequently be enforced in the probate action.

Judge Richard Posner in Jones v. Brennan, 465 F.3d 304 (7th Cir. 2006), distinguished between a claim brought concerning the conduct of the Cook County Probate Court in a pending dispute, holding:

That clearly would violate the probate exception. Marshall v. Marshall, supra, 126 S. Ct. at 1748. But she is also accusing the guardians of having mismanaged the estate, and as an heir she may have a claim for breach of fiduciary duty by them. . . . Such a claim does not ask the court in which it is filed to administer the estate, but rather to impose tort liability on the guardians for breach of fiduciary duty.

465 F. 3d at 307–08 (citations omitted).

In Burt v. Rhode Island Hospital Trust National Bank, No. C.A. PC/022243, 2006 WL 2089254 (R.I. Super. July 26, 2006), the court followed Marshall in holding that a breach of fiduciary duty claim against an executor was not within the limited jurisdiction of the probate court and could be heard in the Rhode Island general jurisdiction court instead.

In Bedree v. Lebamoff, No. 05-2258, 2006 WL 2860575 (7th Cir. Sept. 27, 2006), the Seventh Circuit held in a federal question case that

[t]he claim against the probate commissioner confronts another jurisdictional bar: the probate exception to federal jurisdiction. . . . And Bedree’s request for the district court to remedy what he perceives as errors in the state court’s administration of the estate, like the plaintiff’s request in Jones is the equivalent to asking the district court to take over administration of the estate. . . . This violates the probate exception even under the Supreme Court’s narrowed construction of the exception in Marshall. See, Marshall, 126 S.Ct. at 1748 (limited probate exception to proscribe only “disturb[ing] or affect[ing] the possession of property in the custody of a state court”). . . . The breach of fiduciary duty claim, on the other hand, is not barred by the probate exception because it need not necessarily affect the administration of the estate. See Marshall, 126 S. Ct. at 1748; Jones, 2006 WL 2337610, at *3.

2006 WL 2860575 at *2.

• Email This
• Print
• Comments

Simpson v. In re Estate of Norton, 2007 WL 397463 (Fla. 3d DCA Feb 07, 2007)

The most frustrating probate litigant has to be the irrational adversary.  Not because this type of adversary is more apt to win, but because this type of adversary is more apt to make everyone waste a lot of time and money using the court system to force compliance with existing black letter law every step of the way.  The last sentence of the linked-to opinion gives you a hint of what type of litigant Ms. Simpson is:

[T]his is not the proper forum in which to litigate Simpson's numerous complaints about her three former attorneys and we decline to address those issues.

What's most striking about the linked-to opinion is that although the three orders at issue all cover mundane administrative decisions that all appear to be common sense rulings by a thoughtful probate judge -- an irrational litigant was able to cause unnecessary delay and expense by exploiting the expansive appellate rules applicable to probate proceedings.  Two of the orders on appeal were entered in April of 2006, the third in July of 2006.  The appellate decision upholding those rulings wasn't published until February of 2007: that's 7 months of needless delay!?  If you read the opinion it sounds like the estate's attorney did everything right.  Is there a better way to manage this type of irrational litigant?  I have to admit that in this case I can't think of one.  Sure, you can always move for sanctions, but that doesn't put a stop to the delaying tactics and the irrational litigant will probably brush off the threat of sanctions anyway.

In terms of guidance for future litigants, the following line from the linked-to opinion probably says it best:

[D]issatisfaction with the administration of a probate estate unaccompanied by any legal basis as to how the trial court abused its discretion is not grounds for an appeal.

• Email This
• Print
• Comments (2)

I've written in the past regarding the unique public-relations issues faced by charities involved in trust/probate litigation (see here) and the different expectations the public and media have with respect to such litigants (see here).  The same dynamics are currently playing themselves out in a case involving a $260 million gift to eight charities.

As reported by the New York Times in Salvation Army Unit Seeks to Gain More of a Huge Gift, the charities find themselves balancing a legitimate desire to maximize the funds going to their respective charities -- all of which do good works and could use the money -- against appearing less than saintly in public.  Here are a few excerpts from the linked-to story:

The Salvation Army has gone to court in Seattle to challenge a trust dividing more than $260 million among eight charities, including Greenpeace.


The Salvation Army argues that the specific Greenpeace organization to which the donor, H. Guy Di Stefano, assigned the money was dissolved in 2005 and that its affiliate is not eligible to receive the gift. It wants the court to divide the money among the seven other charities.

“I’m mystified why anyone, let alone the Salvation Army, would oppose Greenpeace receiving this generous donation,” said John Passacantando, the group’s executive director. “It’s obvious that the donor’s intent was for Greenpeace to benefit from this.”

The dispute involves a trust created by Mr. Di Stefano, whose late wife, Doris, inherited United Parcel Service stock from her father, a former U.P.S. executive, and never sold it.

Mr. Di Stefano died in July and left his estate to eight charities: Direct Relief International, the Salvation Army, the Santa Barbara Hospice Foundation, the Santa Barbara Visiting Nurse Association, the American Humane Society, the Disabled American Veterans Charitable Service Trust, Greenpeace International Inc. and the World Wildlife Fund. Each stands to receive roughly $33 million.

Greenpeace International is defunct, however, and a charity called the Greenpeace Fund, with which it shared offices, phones and some employees, is claiming its share.

In October, Bank of America, the trustee, filed a petition in court in Washington State, where Mr. Di Stefano lived at the time of his death, asking what it should do. Shirley Norton, a bank spokeswoman, said it was only seeking to clarify its duties, not to deprive Greenpeace of money.

“Because of the disparity in the names and the fact that Greenpeace International no longer exists, we need guidance from the court,” Ms. Norton said.

The bank’s petition prompted the Salvation Army to contest disbursement of the money to the Greenpeace Fund.

.     .     .     .     .

The other beneficiaries of the trust have avoided the dispute.

“In my 10 years as a legal counsel here, we have never gotten involved in a dispute over donor intent, and we certainly have had the opportunity,” said Christopher J. Clay, general counsel and planned giving director at the disabled veterans group.

“For a national charity to get out there in this kind of a case would take a compelling reason,” Mr. Clay said, “and I don’t think there’s a compelling reason here.”

The tone of the article clearly telegraphs the writer's disapproval of the Salvation Army's actions and the lengths the other charities are going to distance themselves from the Salvation Army.  Not surprisingly the blogosphere has been less than "charitable" to the Salvation Army on this case (see here).  The Salvation Army thought it was resolving a legal dispute when in fact it was stepping into a big PR mess.  I don't fault them for seeking to maximize their share of the $260 million charitable gift, but I do fault them for being clumsy about it.

• Email This
• Print
• Comments (2)

Glover v. Miller, 2007 WL 247899 (Fla. 4th DCA Jan 31, 2007)

In 2005 sixteen-year-old Jerrod Miller was shot to death by a Delray Beach police officer.  Ten years earlier, in 1995, Kenneth Miller was declared Jerrod's father by an adjudication of paternity and judgment requiring child support.  In 2006 posthumous DNA testing revealed a 99% likelihood that another man, Terry Glover, is really the biological father of Jerrod.  Because Jerrod died without a will, under Florida's laws of intestacy (F.S. 732.103), Jerrod's estate passes to his parents in equal shares or to his sole surviving parent if either predeceased him.  Jerrod's mother died in 2003, so whomever ends up designated as his father gets everything.  According to this Sun-Sentinel report, millions could be at stake:

Miller's attorney, T.J. Cunningham, said Willie Gary would file a wrongful-death lawsuit as soon as Miller is formally appointed personal representative of the estate. Gary, a high-profile Stuart attorney, previously notified Delray Beach that the estate would settle the case for $7.5 million.

Both men filed dueling petitions for administration of Jerrod Miller's estate.  The probate court ruled in favor of Miller based on the 1995 paternity adjudication -- and the 4th DCA upheld that ruling based in part on the following rationale:

Section 732.101(2) provides that the decedent's date of death is the event vesting the heirs' rights to intestate property. At the date of Jerrod's death, Glover was not considered Jerrod's father for purposes of intestate succession, because he never married Jerrod's mother, was never adjudicated to be his father, and never acknowledged in writing that he was Jerrod's father. In contrast, Miller was Jerrod's father for purposes of intestate succession because he was adjudicated to be Jerrod's father. Thus, Miller's rights vested on Jerrod's death because he is Jerrod's father by a paternity judgment. Jerrod was a lineal descendant of Miller within the meaning of section 732.108(2)(b), so he is an heir for purposes of section 733.301(1)(b) 3.

.  .  .  .  .  .

As noted by the trial court, Glover did not move to set aside the adjudication of Miller's paternity. His petition for administration of the estate merely alleged that he is the biological father of Jerrod. Yet Miller is Jerrod's father in the eyes of the law, regardless of the results of DNA testing. FN1 The legal father has substantial rights (in this case vested rights) which cannot be lightly dismissed, even by the discovery that the legal father is not the biological father. In fact, our supreme court has held that the mere fact that biological testing shows that a man other than a legal father is the biological father of the child without more does not require the granting of a paternity petition. Dep't of Health & Rehabilitative Servs. v. Privette, 617 So.2d 305 (Fla.1993).

FN1. Glover's contention that he is entitled to summary judgment of fatherhood based upon DNA testing alone is also statutorily inaccurate. Where DNA testing shows a 95 percent or more confidence level that the man is the biological father, it creates only a rebuttable presumption of fatherhood. § 742.12(4), Fla. Stat. (2006).

.  .  .  .  .  .

We agree with the trial court that in order for Glover to assert a right as an heir, the existing judgment of paternity would have to be vacated. A child cannot have two legally recognized fathers. See Achumba v. Neustein, 793 So.2d 1013, 1015 (Fla. 5th DCA 2001).

• Email This
• Print
• Comments

The departure of a number of prominent trust-and-estates partners from Sonnenschein Nath & Rosenthal has highlighted - again - the precarious nature of big firm trusts and estates departments.

As a partner in a small "boutique" trusts-and-estates firm (4 partners, 1 associate) I've seen first hand why this practice is a tough sell for big firm bean counters: leverage.  It's very, very difficult to leverage yourself as a T&E lawyer, which is OK in a small firm -- but not-so-OK in a big firm.  Here's an excerpt of what the Wall St. J. Law Blog had to say on the the subject:

With profitability a top priority at Sonnenschein Nath & Rosenthal, one practice group is under the microscope: trusts and estates. Four T&E partners at Sonnenschein in recent weeks have either left or announced plans to leave the 660-lawyer firm.


Roy Adams, the senior chairman of the practice group, left on Jan. 1 for Constantine Cannon; Eileen Trost jumped to Chicago’s Bell Boyd & Lloyd in December; Richard Brown recently departed for Harrison & Held; and Susan Slater-Jansen has announced she’s moving to Kurzman Eisenberg Corbin Lever & Goodman in White Plains, N.Y.

The departures come at a time when Elliott Portnoy .  .  .  , the firm’s 41-year-old chairman-elect, has said he is bent on taking a hard look at the economics of Sonnenschein’s various departments. T&E may be vulnerable because it is a low “leverage” practice — fewer junior lawyers generally are needed, say, to draft a will than to complete a merger agreement.

I say good riddance -- a sentiment apparently shared by Chicago T&E lawyer Joel Schoenmeyer, as expressed in the following excerpt from his blog, Death & Taxes:

It may be that big firms don't need estate planning groups (or don't think they do -- big firms, like Kirkland & Ellis, are famous for changing their minds on this point). But I think that goes both ways -- good estate planners don't need big firms, either. We're probably going to see more T&E boutique firms (like this one) spring up in the near future, which is a good thing.

• Email This
• Print
• Comments

In re Amendments to Florida Probate Rules, --- So.2d ----, 2007 WL 268753 (Fla. Feb 01, 2007)

To those of us who live in this world, new probate rules are yet another piece of the puzzle to keep up with.  So here you are.  Below is the Florida Supreme Court's preamble and order making the changes effective immediately.

PER CURIAM.
This matter is before the Court for consideration of proposed amendments to the Florida Probate Rules. We have jurisdiction. See art. V, § 2(a), Fla. Const.

On October 30, 2006, the Florida Probate Rules Committee (Committee) filed a fast track report recommending various amendments to the Florida Probate Rules in response to 2006 legislation. The Committee has proposed amendments to a number of rules, mostly in response to statutory changes made by chapters 2006-77 and 2006-178, Laws of Florida. Chapter 2006-77 became effective June 6, 2006, and chapter 206-178 became effective July 1, 2006. In addition, the Committee has recommended amendments to several rules in order to reflect the recent renumbering of the Florida Rules of Judicial Administration. See In re Amend. to Fla. Rules of Jud. Admin., 939 So.2d 966 (Fla.2006). All proposed amendments were approved by unanimous vote of the Committee and the Executive Committee of The Florida Bar Board of Governors. The Committee published the proposals in the November 1, 2006, edition of The Florida Bar News, with a request that comments be filed directly with the Court. No comments have been filed.

Accordingly, upon consideration of the Committee's report and the relevant legislation, we hereby amend the Florida Probate Rules as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective immediately.

It is so ordered.

• Email This
• Print
• Comments (2)