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

The will contest reported on in Surrogate Rejects Will Leaving $5 Million to Former Lawyer is interesting because it highlights the distinction between an ethics violation and a breach of law.  The former can give rise to sanctions against attorneys, the latter is the basis for seeking recourse in a court of law.  Sometimes the same conduct can be the basis for ethics sanctions and legal recourse, but not always.

In the linked-to news report, the focus is on lawyer misconduct that gave rise to grounds for legal recourse in the form of a probate-court order rejecting a will on the grounds of undue influence and fraud (classic grounds for rejecting a will under Florida law: F.S. §732.5165).  For the reasons I wrote about here, the same conduct would likely be grounds for ethics sanctions under Rule Reg. Fla. Bar 4-1.8(c), which prohibits an attorney from preparing an instrument giving the attorney or a person related to the attorney any “substantial gift” from a client, including a testamentary gift, unless the client is related to the proposed donee.

Here's an excerpt from Surrogate Rejects Will Leaving $5 Million to Former Lawyer:

A New York probate court has thrown out a will that bequeathed almost $5 million to the lawyer who drafted it on behalf of her deceased "paramour."

Michele Okin, a disbarred estate lawyer, was named the chief beneficiary in the January 2004 will of Pasquale Coviello, a local real estate developer who died in May 2004. Okin, 46, had been the estate lawyer for Coviello and his wife before she began an affair with Coviello in December 2002.

In a decision issued Tuesday, Orange County, N.Y., Surrogate Elaine Slobod said Okin had used this relationship to dupe Coviello, who died unexpectedly at age 62 on May 5, 2004, into executing a new will on Jan. 13, 2004. The surrogate ordered the bequests to Okin to be expunged "lest she be permitted to profit by her fraud and undue influence, or take advantage of her own wrong."

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Writing here back in November of 2006 I predicted that permanent reform of the estate tax was a very real possibility, and that such reform would likely mean a freeze on the estate tax at 2009 levels: $3.5 million exemption at a top rate of 45 percent.

As recently reported here by the North Carolina Estate Planning Blog, the U.S. Senate just approved an amendment to the Budget Resolution that would extend the 2009 estate tax rate (45%) and exemption ($3.5 million) through 2012.  Under current law the estate tax would be "repealed" in 2010, but would return in 2011 with an exemption of only $1 million.

This latest Senate vote may not be a permanent fix, but if passed into law, it will get us passed 2010.   In the same blog post cited above the North Carolina Estate Planning Blog also published an excellent analysis of the current state of affairs on the estate-tax front prepared by Marshall Jones of West Palm Beach, Florida.  Well worth reading.

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Trenchard v. Gray, --- So.2d ----, 2007 WL 837294 (Fla. 2d DCA Mar 21, 2007)

In Dempsey v. Dempsey (a 2005 opinion I wrote about here) the 2d DCA ruled on when elective share orders are subject to appeal.  Under Florida Probate Rule 5.360, determining the elective share is a two-step process:

• First, the trial court must rule on the issue of entitlement (Rule 5.360(c)).
• Second, if the trial court finds entitlement, then it must determine the amount of the elective share, the assets to be distributed to satisfy the elective share, and, if contribution is necessary, the amount of contribution for which each recipient is liable (Rule 5.360(d)). 

Step one is a non-final, non-appealable order.  Step two is an appealable order.

Based on the same rationale, the 2d DCA dismissed an appeal of a step-one elective share order in the linked-to opinion.  The following excerpt from Judge Silberman's concurring opinion does a good job of explaining - again - the 2d DCA's approach to elective-share-order appeals:

Appellant Vicki Trenchard raises an issue regarding whether certain real property to which she claims ownership is subject to Appellee Marcia Gray's claim to an elective share. Ms. Trenchard and William Gray, the decedent, owned the property as joint tenants with the right of survivorship. The trial court's order finds that the decedent's interest in the real property is subject to the elective estate. The order is consistent with the statutory requirement that the value of the decedent's interest in the property must be taken into account to determine the elective estate. See § 732.2035, Fla. Stat. (2005).

The trial court has not determined any questions as to ownership of the property or whether the property itself may be used to satisfy the elective share claim. The court also has not resolved questions as to the amount of the elective share, the identification of assets that will be used to satisfy the elective share, the amount of the unsatisfied balance of the elective share, or the apportionment of the unsatisfied balance among the direct recipients of the remaining elective estate. See §§ 732.2075, 732.2085. Thus, I concur in the decision to dismiss this appeal because the trial court's order is nonfinal and nonappealable. See Dempsey, 899 So.2d 1272.

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In re Estate of Coukos, 947 So.2d 1290, 32 Fla. L. Weekly D433 (Fla. 2d DCA Feb 09, 2007)

Sometimes the best defense is a good offense.  In the linked-to case, counsel for the personal representative deftly defended against a lawsuit by disinherited heirs by attacking their standing to bring the suit, vs. allowing his client to get dragged into a full-blown will contest. 

Based on the following rationale, the 2d DCA held that the grandchildren and great-grandchildren of the testator lacked standing to petition to revoke his will, in which they were not beneficiaries, given that previous and presumptively valid wills were discovered that, similar to the current will, did not include the petitioners as beneficiaries of the estate. This is a one paragraph opinion, and although unstated, the key concept here is Florida's "dependent relative revocation."

Appellants, the grandchildren and great-grandchildren of Harry L. Coukos, challenge the trial court's dismissal with prejudice of their petition for revocation of probate, in which they challenged Mr. Coukos' 2004 will. Because Appellants lacked standing to challenge the will, we affirm. See Wehrheim v. Golden Pond Assisted Living Facility, 905 So.2d 1002, 1006 (Fla. 5th DCA 2005) (“[A] petitioner may not be an interested person in revocation and removal proceedings if previous and presumptively valid wills have been discovered that, similar to the current will, do not include the petitioner as a beneficiary of the estate.”). However, we do so without prejudice to any right Appellants may have to challenge the trust agreement.

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When reading the linked-to story keep two Florida-law points in mind.

• As I wrote about here, in Florida, adults can be adopted, and for the purpose of intestate succession by or from an adopted person, the adopted person is considered a lineal descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent's family. 63.042, 732.108.
• I wrote here about a 2005 decision where the 4th DCA held that under Florida law the presumption is that a testator intendedd the term “heirs at law” to be construed under the statutes in existence at the time the Will was executed.

With these points in mind, now consider the following excerpts from Woman's Search for Her Birth Mother Leads to Share of Jell-O Fortune:

'ADOPTED OUT' DAUGHTER

After the trustee told McNabb that she would not be entitled to a share, McNabb hired an attorney to represent her at the Surrogate Court's settlement of the trusts.

She chose a lawyer randomly from the Genesee County Web site and called his office, hoping to find someone familiar with the Woodward family. Coincidentally, the first attorney she called, Paul S. Boylan, knew the family well.

"Not only do I know about the Woodwards," Boylan told McNabb, "but my father was your grandfather's attorney."

In December 2005, Monroe County Surrogate Judge Edmund A. Cavalruso ruled that as an "adopted-out" daughter McNabb did not constitute a "descendant" or "child" of Piel and therefore was not a member of the trusts' class of intended remaindermen or beneficiaries.

On Friday, the 4th Department reversed, effectively awarding McNabb a one-third share of the multimillion-dollar trusts.

The case turned on the dates the trusts were established.

The underlying Surrogate Court decision had relied on a 1985 decision, Matter of Best, 66 NY2d 151, which in turn rested on amendments to the Domestic Relations Law that became effective in 1964 and 1966. Under the amended law, adopted children could no longer inherit "from and through" both their biological and adoptive parents.

But the 4th Department disagreed, holding that Best did not apply as it and the amendments were not in effect when the trusts were established.

By the narrowest of margins -- the second trust was executed in 1963, the year the first amendment was passed by the Legislature, but one year before its effective date -- the original Domestic Relations Law controlled, the panel determined.

And under the original DRL §117 (as well as Decedent Estate Law §89), McNabb is her mother's daughter, the panel concluded.

DEL §89 "recognized the status of a nonmarital child as the descendant of his or her mother, albeit through the provision that such child shall inherit only in the event that no 'lawful issue' existed," the panel ruled. "In addition, Domestic Relations Law former §117 specifically provided that adopted-out children may inherit from and through their biological as well as their adoptive parents."

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The one crack in the almost impenetrable fortress protecting Florida homestead property from creditors is the amorphous "equitable lien" doctrine.  There isn't a lot of case law out there on equitable liens against Florida homestead, so In re Gosman, 2007 WL 707365 (Bankr.S.D.Fla. Mar 05, 2007) should be of interest to anyone whose practice involves homestead issues.

In this case the bankruptcy court said NO to a creditor seeking to impose an equitable lien on $22.5 million in net sales proceeds generated by the sale of former health care executive Abe Gosman's Palm Beach mansion.  The court articulated the following two-part test for determining "the very narrow circumstances warranting the imposition of an equitable lien" on homestead property under Florida law:

• that the money was obtained fraudulently or through egregious conduct, and
• that the money obtained was utilized to invest in, purchase or improve the homestead. The Court finds that neither of the two prongs has been satisfied.

Here's how the bankruptcy court summarized Florida's equitable lien case law:

The Florida homestead exemption is construed liberally and the three exceptions to the Florida homestead exemption are construed narrowly and strictly. Havoco of America. Ltd. v. Hill, 790 So.2d 1018 (Fla.2001). A limited legal basis has been established for imposing an equitable lien on homestead. The first case from the Florida Supreme Court to impose an equitable lien determined that the imposition of a lien was proper due to the embezzlement of funds by an employee who, in turn, used the funds to make improvements to the home. Jones v. Carpenter, 106 So. 127 (Fla.1925). The Court in Jones elaborated that if the money had been obtained through a valid contract and then utilized to make home improvements, the imposition of an equitable lien would not be appropriate. Id. In Palm Beach Savings & Loan Association, F .S.A v. Fishbein, 619 So.2d 267 (Fla.1993), the Florida Supreme Court allowed an equitable lien against homestead property wherein monies were obtained fraudulently by use of a forged mortgage instrument and then utilized to satisfy a valid mortgage. In Chauncey v. Dzikowski, 454 F.3d 1292 (11 Cir.2006), the Eleventh Circuit Court of Appeals referenced the standard for imposing an equitable lien by stating that it may be necessary to reach beyond the literal language of the Florida homestead exemption to invoke an equitable lien against homestead property when funds were obtained through fraud or egregious conduct and utilized to invest in, purchase, or improve the homestead. Id. at 1294.

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Unfortunately, the Florida trial judges involved in the Anna Nicole Smith proceedings in this state have not fared well under the glare of national media attention.  First Judge Seidlin was the focus of considerable criticism (see here), now it's Judge Lawrence Korda's turn under the microscope.

But for the Anna Nicole Smith case, Judge Korda's recent run in with the law would never have hit the papers.  But, here we are.  In Judge Involved in Anna Nicole Smith Case Cited for Marijuana the Associated Press reported on the following sad news:

A judge who had a secondary role in recent Anna Nicole Smith proceedings was cited for smoking marijuana in a Hollywood, Fla., city park, police said Monday.

Lawrence Korda was smoking marijuana while sitting under a tree at Stanley Goldman Park on Sunday, police said. Three officers who were doing training there caught Korda and field-tested the joint, said Capt. Tony Rode, a police spokesman.

The judge was not arrested. He was given a misdemeanor citation to appear in court.

"Judge Korda was not given special treatment because of his status as a circuit court judge," Rode said. "He was provided with a notice to appear. That's exactly what 99 percent of other offenders would have been given for this type of offense."

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Estate planning is challenging because planners are asked to anticipate issues that may or may not present themselves for decades to come.  The "adult adoptee" issue is a perfect example of the type of low-probability scenario that can come back to bite a family if not appropriately anticipated.

The New York Times reported on a high profile trust case involving an adult adoptee in Partner Adopted by an Heiress Stakes Her Claim.  The following are excerpts from the linked-to piece: 

In 1991, Ms. Watson, then 43, adopted Ms. Spado, then 44, under a Maine law that allows one adult to adopt another. The reason, Ms. Spado has contended in court documents, was to allow Ms. Spado to qualify as an heir to Ms. Watson’s estate.

But less than a year after the adoption, Ms. Watson and Ms. Spado broke up. Then in 2004, Ms. Watson’s mother died, leaving multimillion-dollar trusts established by her husband to be divided among their 18 grandchildren.

Re-enter Ms. Spado with a claim: Because she was adopted by Olive F. Watson, she said, she is technically Thomas J. Watson Jr.’s 19th grandchild and is therefore eligible for a share of the trusts.

*     *     *     *     *

Many states allow adult adoption, but the laws were primarily intended for situations like a stepparent adopting a stepchild later in life, said D. Marianne Blair, an adoption expert at the University of Tulsa College of Law.

However, some same-sex couples began using the adoption process to establish financial security or inheritance for their partners, said Arthur S. Leonard, a professor at New York Law School.

“Before we had domestic partnership ordinances, before same-sex marriage or civil unions, back then there wasn’t much you could do,” Professor Leonard said.

In Florida, adults can be adopted, and for the purpose of intestate succession by or from an adopted person, the adopted person is considered a lineal descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent's family.  63.042, 732.108.

The adult-adoptee issue can be addressed with fairly simple boilerplate language inserted into the client's will or trust.  The following is an example:

Effect of Adoption. A legally adopted child (and any descendants of that child) will be regarded as a descendant of the adopting parent only if the petition for adoption was filed with the court before the child’s thirteenth birthday. If the legal relationship between a parent and child is terminated by a court while the parent is alive, that child and that child’s descendants will not be regarded as descendants of that parent. If a parent dies and the legal relationship with that deceased parent’s child had not been terminated before that parent’s death, the deceased parent’s child and that child’s descendants will continue to be regarded as descendants of the deceased parent even if the child is later adopted by another person.

Special thanks to Miami commercial litigator Javier A. Reyes of Boies, Chiller & Flexner LLP for bringing the New York Times article to my attention.

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I previously wrote here about Engelke v. Estate of Engelke, a 4th DCA opinion holding that homestead held in a revocable trust remained exempt from forced sale or lien by judgment creditors pursuant to Article X, Section 4(a) of the Florida Constitution.  The reason why opinions like Engelke are especially interesting for estate planners is because they chip away at the precedential value of In re Bosonetto, 271 B.R. 403 (Bankr.M.D.Fla.2001), a Middle District Bankruptcy Court opinion ruling that homestead property in a revocable trust lost its creditor protection.  Bosonetto has been the subject of heavy criticism every since.

We now have two new Middle District Bankruptcy Court opinions expressly refusing to follow Bosonetto:  In re Alexander, 346 B.R. 546, 19 Fla. L. Weekly Fed. B 356 (Bankr.M.D.Fla. Jul 25, 2006), and In re Edwards, --- B.R. ----, 2006 WL 3788803 (Bankr.M.D.Fla. Oct 04, 2006).

This is good news for planners, although the issue is not yet dead.  Bosonetto hasn't been overruled.  Until it is, planners should remain cautious.  The following excerpts from Edwards summarize the well-reasoned analyses underlying both opinions:

The issue for determination is whether real property in which a debtor resides qualifies for the Florida homestead exemption when title to the property is held by a revocable trust. The issue is governed by Florida state statutory and case law. Florida opted out of the federal bankruptcy exemption scheme and a debtor filing for bankruptcy protection in Florida must use Florida's state law exemptions. The Florida exemptions include a homestead exemption found at Florida Constitution, Article X, Section 4(a)(1):

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:

(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner's consent by reason of subsequent inclusion in a municipality; upon which the exemption shall be limited to the residence of the owner or the owner's family.

Fla. Const. Art. X, § 4 (emphasis added).

*     *     *     *     *

The Trustee relies on the decision In re Bosonetto, 271 B.R. 403 (Bankr.M.D.Fla.2001) in which the Bankruptcy Court held a debtor may not claim real property owned by a trust as exempt homestead property. The great weight of the relevant case law holds to the contrary. Fee simple title of the property is not required, and an equitable or legal interest should afford protection pursuant to the provision.

The Florida Appellate Court ruled in Engelke v. Estate of Engelke, 921 So.2d 693, 696 (Fla. 4th DCA 2004) a revocable trust was constitutionally protected homestead property and could not be used to pay claims and expenses of the grantor's estate. The grantor of the trust retained an ownership interest in the property since the trust was revocable. The trust, due to its revocable nature, was owned by a “natural person” within the meaning of the Florida homestead exemption. The revocable trust only held title to the property, while the grantor retained ownership.

A recent case decided in the Middle District of Florida, In re Alexander, 346 B.R. 546 (Bankr.M.D.Fla.2006) is in agreement holding fee simple title to the property is not necessary to qualify for the homestead exemption.  “... [I]n order to claim property in which the individual resides as exempt it is sufficient that: (1) the individual have a legal or equitable interest which gives the individual the legal right to use and possess the property as a residence; (2) the individual have the intention to make the property his or her homestead; and (3) the individual actually maintain the property as his or her principal residence.” The Bankruptcy Court ruled homestead property titled in a revocable trust can be exempt from a debtor's bankruptcy estate in a Chapter 7 case.

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Cutler v. Cutler, --- So.2d ----, 2007 WL 601866 (Fla. 3d DCA Feb 28, 2007)

Homestead is known as Florida’s legal chameleon because it has different meanings depending upon its context.  Here's how the 3d DCA described the three faces of Florida's homestead law in the linked-to opinion:

As the Florida Supreme Court noted in Snyder v. Davis, 699 So.2d 999, 1001-02 (Fla.1997), there are three kinds of homestead with one purpose: preserving the family home for its owner and heirs. The first kind, unrelated to this case, provides homestead with an exemption from taxes. See Art. VII, § 6, Fla. Const. The second protects homestead from forced sale by creditors. Art. X, §§ 4(a)-(b), Fla. Const. The third delineates the restrictions a homestead owner faces when attempting to alienate or devise homestead property. Art. X, § 4(c), Fla. Const.

This case is another example of homestead law derailing a Florida testator's estate plan.  All parties conceded that the homestead property at issue was "freely devisable" under Florida law, and yet the testator's intent was still frustrated by Florida's homestead law.

The estate plan at issue was simple: mom, whose only surviving family was her adult son and daughter, specifically devised 2 pieces of real estate, her home to her daughter and an adjacent vacant lot to her son.  In the event the administrative expenses of her estate exceeded her residuary estate, mom wanted the remaining expenses to be shared equally by son and daughter.  Here's how the 3d DCA described mom's plan:

Edith's [estate] plan [was] that if other available assets are insufficient to satisfy her creditors' claims and the final expenses of her estate upon her death, the residence she devised to Cynthia and the adjacent vacant parcel she devised to her son Edward will abate equally to satisfy those expenses.

Daughter objected to apportioning any probate expenses to her devise of freely-devisable homestead property and the trial court agreed pursuant to the “inuring clause” of Article X, section 4(b) of the Florida Constitution, effectively frustrating mom's clearly expressed testamentary intent.  The following excerpts from the linked-to opinion provide a good summary of the 3d DCA's rationale for upholding the trial court's ruling:

The specific homestead protection at issue in this case is protection against forced transfer for use by an estate after the death of a decedent. Art. X, § 4(b), Fla. Const. To clearly distinguish this particular protection in the Florida Probate Code from other forms of homestead, the Legislature has denominated it as “protected homestead.” See § 731.201(29), Fla. Stat. (2003)(defining “protected homestead as “[that] property described in s. 4(a)(1), Art. X of the State Constitution on which at the death of the owner the exemption inures to the owner's surviving spouse or heirs under s. 4(b), Art X of the State Constitution”).

*     *     *     *     *
Here, we are confronted with two specific devises of property, which, in the general residuary clause of her will, Edith directed should be contingently available to her personal representative, if necessary, to pay the expenses of her estate. See Park Lake Presbyterian Church v. Estate of Henry, 106 So.2d 215, 217 (Fla.1958)(defining a specific devise as “a gift of a particular thing or of a specified part of a testator's estate so described as being capable of distinguishment from all others of the same kind,” and defining a residuary legacy as “a general legacy wherein fall all the assets of the estate after all other legacies have been satisfied and all charges, debts, and costs have been paid”). On their face, these two specific devises appear equal in dignity. But upon closer examination, it is clear that they are not. In the case of the specific devise of the vacant land to Edward, there is no question but that Edith had the legal right to subject this devise to the debts of the estate if she so desired. § 733.805(1) Fla. Stat. (2004)(“Funds or property designated by the will shall be used to pay debts [of the estate] ... to the extent the funds or property is sufficient.”); In re Estate of Potter, 469 So.2d 957, 959 (Fla. 4th DCA 1985). However, as we have learned, the devise to Cynthia was followed by a constitutional exemption from forced sale of her devise to satisfy the expenses of Edith's estate. This constitutionally created benefit is personal to Cynthia, and hers to assert. For reasons of her own, she has determined to do so. We do not consider ourselves liberated to deny her this constitutional benefit.

Lesson learned:

The lesson to be drawn from this case is that the creditor protection aspects of even freely-devisable homestead property will trump all other interests -- including a testator's individual property rights in his or her own home.  This point is made by the Judge Schwartz in his dissent:

The ground of my dissent is aptly stated in the appellant's brief:

When there is no surviving spouse or minor child, as in this case, the decedent's homestead may be freely transferred, gifted, or devised without limitation. Art. X, Section 4(c), Fla. Const.; City National Bank of Fla. v. Tescher, 578 So.2d 701, 703 (Fla.1991). ... If Mrs. Cutler could have left her properties to someone outside of her family, which she could have done, why could she not leave it to her heirs with the provision that the properties be available to satisfy her debts? The answer to this question is simple-she was lawfully entitled to do so.

See also DeMayo v. Chames, 934 So.2d 548, 551 (Fla. 3d DCA 2006) (Shepherd, J., concurring) (persuasively stating view that property owner should have authority to deal with homestead property as she sees fit), review granted, 937 So.2d 122 (Fla. 2006).FN6

FN6. I hope, without confidence, that the majority is not saying that the limitation on the devise would have been okay if it were contained in the same sentence or paragraph as a condition of the devise, but it is not and the testatrix's clearly expressed wishes must be frustrated because it is in a separate provision of the will. If my hope is unjustified, as I write I can hear workers installing the words-in Gothic letters, of course-“All common sense abandon, ye who enter here” over the doors to our courtroom.

I am sympathetic to Judge Schwartz's position, as I previously stated here.

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Professor Judith G. McMullen, Marquette University - Law School, just published a new article that should be of interest to probate litigators trying to make sense of the underlying dynamics driving most will contests: Keeping Peace in the Family While You are Resting in Peace: Making Sense of and Preventing Will Contests.

Here's the SSRN abstract of this article:

Abstract:

This Article focuses on post-mortem challenges to wills. All such will challenges involve a clash between the testator's stated intentions and the disappointed heirs' expectations and desires. While the legal issues may differ somewhat in individual cases, the claims are almost invariably the result of a disappointed heir feeling that she has been treated unfairly or has not received what she expected to receive. Rather than focusing on the technical issues of will drafting or execution, this Article reflects on the emotional causes of fighting over an estate and suggests some ways to reduce the family fighting and hard feelings that result in will contests.

The first section of the Article describes some of the common legal challenges used to prevent the enforcement of specific will provisions or to contest the will's admission to probate. The Article then discusses the overarching issue of why surviving family members fight about property after the death of a love one. Here, the Article describes the legal concept of freedom of testation and contrasts a testator's view towards property ownership and disposal with the views of potential family recipients. This section also discusses the implicit preference that the law gives to presumptive heirs – a preference that probably bolsters the resolve of disappointed heirs to engage in will challenges. In the final section, this Article describes specific steps that typically are recommended for use by testators to reduce the likelihood of will challenges, and it concludes by asking clients and their lawyers to mull over the long-term emotional and social repercussions of proposed estate plans.

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Arthur v. Milstein, --- So.2d ----, 2007 WL 602630 (Fla. 4th DCA 2007)

Poor Judge Seidlin.  Even when he gets it right . . . he's wrong.  Relying on the "tipsy coachman" doctrine, which allows allows an appellate court to affirm a trial court that “reaches the right result, but for the wrong reasons” so long as “there is any basis which would support the judgment in the record,” the 4th DCA upheld Judge Seidlin's ruling granting power to decide where Smith will be buried to Richard C. Milstein, as guardian ad litem for Smith's 5-month-old daughter, Dannielynn Hope Marshall Stern.

According to the 4th DCA, the trial court incorrectly based its ruling on Florida statutes intended to guide funeral home operators and medical examiners:

The trial court relied upon section 406.50(4) to determine that Dannielynn had priority over Arthur. .  .  .  .

We find that neither section 497.005(37), nor section 406.50, control the outcome of this case, which in essence involves private parties engaged in a pre-burial dispute as to the decedent's remains. Otherwise stated, the trial court was not being asked to consider whether a funeral home or medical examiner was liable for its decision with respect to the disposition of a decedent's remains.

Instead, as I predicted here, the 4th DCA held that its prior ruling in the Cohen case was the correct basis for deciding this dispute: Anna Nicole Smith's body should be disposed of in accordance with her intent, as established by clear and convincing evidence.

Here's how the 4th DCA articulated its rationale:

In this case, common law is dispositive. Kirksey v. Jernigan, 45 So.2d 188, 189 (Fla.1950); Cohen v. Guardianship of Cohen, 896 So.2d 950 (Fla. 4th DCA 2005); Leadingham v. Wallace, 691 So.2d 1162 (Fla. 5th DCA 1997). Generally, in the absence of a testamentary disposition, the spouse of the deceased or the next of kin has the right to the possession of the body for burial or other lawful disposition. Kirksey. In Cohen, we held that a written 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 for his body. Cohen looked to decisions of other states which determined that whether to enforce the will provisions regarding disposition of the testator's body depends upon the circumstances of the case.

*     *     *     *     *
Cohen noted that there were “no cases in Florida or across the country in which a testamentary disposition has been upheld even though credible evidence has been introduced to show that the testator changed his or her mind as to the disposition of his/her body.” 896 So.2d at 954. There, we found no abuse of discretion associated with the trial court's finding of the decedent's intent. See also Leadingham. We note that even under section 497.005(37), the first priority is to the wishes of the decedent “when written inter vivos authorizations and directions are provided” and that the remaining list of legally authorized persons are those who are most likely to know and follow those wishes. To the extent sections 497.005(37) and 406.05(4) provide guidance, the priorities therein could set forth a presumption, rebuttable by clear and convincing evidence of the decedent's intent, as was the will in Cohen, and as found here.

This is probably the end of Florida litigation involving Anna Nicole Smith.  Apparently the Bahamian court system will be the next stop for this litigation train.  See Wrangling over Anna Nicole’s body ends:

A judge in the Bahamas is hearing the child custody dispute between Arthur and Stern, who is listed as Dannielynn’s father on the birth certificate. On Tuesday, Arthur saw the little girl for the first time and left the home in tears.

In Fort Lauderdale on Wednesday, Judge Lawrence Korda ordered DNA samples from Smith’s body be turned over to attorneys for photographer Larry Birkhead, an ex-boyfriend of Smith’s. Frederic von Anhalt, the husband of actress Zsa Zsa Gabor, also says he could be the father. But Korda said he had no jurisdiction to do anything further.

“The Bahamas is the proper venue, and the Bahamian court has already exercised jurisdiction over the minor child,” Korda said.

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In order to be effective, trusts and estates attorneys must not only tell their clients what the law is, they also need to make recommendations on how their clients should proceed given the status of the law.  For example, counseling a trustee on the meaning of Florida's "prudent investor rule" (F.S. 518.11) isn't very helpful if you can't provide options and recommendations to the trustee for applying this general rule to the concrete facts of a particular deal.  Although the business-evaluation portion of this discussion is likely to focus on non-law issues, the communication is undeniably made for the purpose of providing effective legal advice.

If ever confronted with a challenge to the privileged nature of such communications, Florida trusts and estates attorneys should find comfort in Pritchard v. Erie County, a recent 2nd U.S. Circuit Court of Appeals opinion reported on in The Attorney-Client Privilege and the 'Complete Lawyer': More than Mere Legal Advice.  Here are a few excerpts from the linked-to opinion:

When clients seek legal advice, they have a right to expect their lawyers to do more than scan in the pertinent statute and e-mail it to the client, or recite to the client the elements of the applicable tort or criminal offense. Clients want lawyers to guide them, to provide viable options, and to suggest to them what they should do given the status of the law. A lawyer capable of doing that is very much acting as a lawyer. A client with the benefit of the services of such a "complete lawyer" also retains the protection of the attorney-client privilege.

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ATTORNEY-CLIENT PRIVILEGE AND THE 'COMPLETE LAWYER'

In a recent decision, Pritchard v. Erie County, No. 06-2459-op (Jan. 3, 2007), the 2nd U.S. Circuit Court of Appeals held that a client does not forfeit the protection of the attorney-client privilege merely because that client has the good sense or good fortune to have hired a lawyer who is able not only to tell the client what the law is, but can also make recommendations and advise the client on how the client should proceed given the status of the law.

Pritchard is a class action filed on behalf of people who had been arrested and subjected to strip searches by the defendant, Erie County, N.Y. During discovery, the county, on the basis of the attorney-client privilege, withheld from production a series of e-mails between county officials and a county attorney. In the e-mails, the county attorney, who herself had no policy-making authority, did more than tell county officials what the law was; she, after explaining the status of the law, also "assessed the County's current search policy, recommended alternative policies, and monitored the implementation of these policy changes."

The trial court held that the attorney-client privilege did not protect the e-mails from disclosure because the county attorney, by proposing policy changes and then monitoring the implementation of those policy changes, went "beyond rendering legal analysis." In essence, the trial court concluded that the attorney-client privilege did not apply because the county attorney was acting as a policy maker, not as a lawyer.

The 2nd Circuit reversed, holding that the county attorney was merely doing her job as a lawyer, and doing it well, when she went beyond a mere rendering of legal analysis, and that the client did not lose the protection of the attorney-client privilege because she did so. The 2nd Circuit acknowledged, of course, that the privilege applies only to communications between client and counsel "made for the purpose of obtaining or providing legal assistance." And clearly, the attorney-client privilege would not apply if, for instance, county officials sought media relations advice from someone who happened to be a lawyer. In Pritchard though, the 2nd Circuit, upon an in camera review of the documents, held that the "predominant purpose" of the e-mails at issue was legal in nature. The fact that the e-mails included policy recommendations, assessments and oversight did not transform the county attorney into something other than a lawyer; nor did that fact render the attorney-client privilege inapplicable. Instead, the county attorney was merely doing what her client had a right to expect her to do as a "complete lawyer."

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