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

Chaffin v. Overstreet, --- So.2d ----, 2008 WL 678664 (Fla. 5th DCA Mar 14, 2008)

In contested probate proceedings involving larger estates things can quickly get messy from a jurisdictional and civil procedure perspective because people don't order their lives into nice neat categories labled "probate" and "non-probate" assets.  Heirs inevitably get in front of the probate judge and ask the court to rule on all sorts of issues that simply have nothing to do with administering the decedent's probate estate, although they may have a huge impact on the economic well being of the decedent's heirs.  A prime example of this type of hodgepodge approach to litigation is the intermixing of contested trust actions with completely unrelated probate proceedings.

In the linked-to case the personal representative of "Wife's" estate was also co-trustee of a trust established by her husband ("Husband's Trust"), a trust established by Wife and a trust referred to as the "Family Trust."  The PR filed a petition within the probate proceeding seeking to remove the co-trustee of the Family Trust.  At a hearing involving the Family Trust litigation all of sudden the probate court started entering rulings having to do with Husband's Trust.  Here's how the 5th DCA described this part of the case:

On 12 September 2006, Chaffin, acting as the personal representative of [Wife's] estate, filed a Petition to Remove Robert Clay Overstreet as Co-Trustee of the [Family Trust]. Chaffin alleged that Clay was “presently ‘unable’ to serve as Co-trustee of the [Family Trust].”  .  .  .

.  .  .

During the hearing, the trial judge also inquired about the sale of the Ham Brown Road property, which was fifty acres given in trust to Cole in [Husband's Trust]. Because the property was not part of the [Family Trust], Chaffin argued that the probate court lacked jurisdiction to rule on this issue. Nevertheless, the probate judge found that Chaffin did not have authority under the language of [Husband's Trust agreement] to sell the property. Shortly thereafter, the probate judge announced that he was requiring yearly accountings on everything that goes through the trust or probate estate.

The 5th DCA agreed with the trustee's jurisdictional objection, reversing the probate court as follows:

We .  .  .  find that Chaffin's due process rights were violated when the probate court considered issues other than the Petition to Remove Clay. The only matter noticed for hearing was whether Clay should be removed as the co-trustee of the [Family Trust]. Thus, the probate court lacked jurisdiction over the [property owned by Husband's Trust] because the issue was not sufficiently raised by the pleading and noticed for hearing. See Alvarez v. Singh, 888 So.2d 159 (Fla. 5th DCA 2004).


In addition, we find that Chaffin was before the court solely in his capacity as co-trustee of the [Family Trust] and the probate court lacked jurisdiction over any other trusts. Although Chaffin sought the appointment of the guardian ad litem and the attorney ad litem in his capacity as trustee of [Husband's Trust] and [Wife's Trust], this was insufficient to constitute a general appearance by Chaffin in these capacities. See McKelvey v. McKelvey, 323 So.2d 651, 653 (Fla. 3d DCA 1976) (holding that a general appearance will ordinarily be effected by making any motion involving the merits of a plaintiff's claim and his or her right to maintain the suit and secure the relief sought); Snipes v. Chase Manhattan Mortg. Corp., 885 So.2d 899 (Fla. 5th DCA 2004). Accordingly, we find that, while Clay is entitled to the use of [Family Trust] money to obtain counsel to defend against attacks brought by Chaffin, the probate court lacked jurisdiction to award Clay trust money from any other trusts. See In re Estate of Stisser, 932 So.2d 400, 402 (Fla. 2d DCA 2006) (holding that trustees are indispensable parties and the probate court must have jurisdiction over the trustees in order to enter a ruling affecting the corpus of the trust); McLendon v. Smith, 589 So.2d 410 (Fla. 5th DCA 1991) (holding that presence in one capacity does not subject a party in another capacity to the jurisdiction of the court).

Lesson learned?

If you're already in front of a probate court and it looks like a related trust may be affected by the probate litigation, you need to anticipate the jurisdictional issues and make a choice: either file a petition getting your trust in front of the same probate judge or file a separate trust action in the general-jurisdiction division of the circuit court and get your trust in front of a different judge.  There are pros and cons to either choice, but at least you've dealt with the jurisdictional issues head on (and hopefully plead the separate trust action in a way that makes sense from a procedural view point).

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Clemons v. Thornton, --- So.2d ----, 2008 WL 624863 (Fla. 1st DCA Mar 10, 2008)

When an appellate opinion comes along dissecting a discombobulated homestead deed and explaining "who" gets "what" when the dust settles, it's gold because it's like getting the answers to your final exam in advance.  The linked-to case serves up one of those opinions.

The linked-to case addressed the following common estate-planning scenario:

Widowed father wants to make sure his second wife has the right to live in the house he purchased and paid for years prior to the second marriage, but also wants to make sure that when he and second wife die, the house goes to his children, not second-wife's children from a prior marriage.

This estate plan is simple enough, and if done properly, works all the time.  In the linked-to case the "widowed father" apparently decided to save a few bucks in legal fees by doing his own legal work.  The following facts of the case are all you need to know to see that by being "penny wise" he was setting his estate up for litigation from the get go (which is exponentially more expensive than simple estate planning).

2d DCA describes discombobulated deed:

The preprinted form warranty deed Mr. Clemons executed described the homestead property and named himself and “Ruth Clemons his wife” as grantees. But the deed contained a typewritten provision immediately following the property description, entitled “Addition to This Instrument,” which stated:

The parties of the second part, W.C. Clemons Jr. and Ruth Clemons Witness that the death of the last surviving party of the second part [sic] shall be cause to convey and confirm and assign forever all that certain parcel of land described above to Joyce M. Thornton.

Mr. Clemons died intestate some seven years later, survived by his widow and lineal descendants, including Joyce M. Thornton. By deed dated January 6, 2004, Mrs. Clemons purported to convey the property to herself and Lloyd Gilpin, Jr., her grandson. Ms. Thornton then sued for declaratory and other relief.

The key facts to note are: deed was executed after second marriage, and second wife did not sign the deed. When this deed eventually became the subject of litigation (surprise?!), the 2d DCA unwound the deal by addressing the following 4 questions.

[1st Question]: Did the deed validly convey a life estate to grantor and his wife?  YES

The trial court and 2d DCA both said "yes." Here's how the 2d DCA explained the Florida homestead law governing this point:

Mr. Clemons's grant of a life estate to himself and Mrs. Clemons as tenants by the entireties was a valid conveyance. See Matthews v. McCain, 125 Fla. 840, 170 So. 323, 325 (Fla.1936) (holding husband and wife may hold life estates as tenants by the entireties). Like the provision on the books today, section 689.11, Florida Statutes (1993), allowed conveyances of real property, including homestead property, between spouses, and did not require the grantee spouse to join in such conveyances. The summary judgment correctly confirms the existence of a life estate in Ruth Clemons, widow of her erstwhile cotenant by the entireties.

[2d Question:]  Did the deed validly convey a remainder interest to the daughter, in the absence of joinder by the wife?  NO

The trial court concluded that the grantor clearly "intended" to convey a remainder interest in his home to his daughter, and ruled that the deed accomplished the grantor's stated intent.  For those of us who follow Florida's homestead laws (and aren't embarrassed to admit it), it's no surprise to see once again that what people "want" to do with their homes often bears no relation to what Florida law requires.  That's what happened in this case, and the 2d DCA reversed the trial-court on this point as follows:

But Mr. Clemons's attempt to convey the remainder interest to Joyce M. Thornton was ineffective without Mrs. Clemons's joinder. Florida's Constitution requires that both spouses join in alienating homestead property in favor of any third party. See Art. X, § 4(c), Fla. Const. Interpreting the constitutional provision, our supreme court has noted that “it is clear that both [spouses] must join in a conveyance of a homestead owned by one spouse to a third party.” Jameson v. Jameson, 387 So.2d 351, 353 (Fla.1980) (quoting Note, Our Legal Chameleon is a Sacred Cow: Alienation of Homestead under the 1968 Constitution, 24 U. Fla. L.Rev. 701, 705-07 (1972)). A purported transfer of the homestead, not in compliance with constitutional requirements, is void. See Robbins v. Robbins, 360 So.2d 10, 11-12 (Fla. 2d DCA 1978), appeal dismissed, 365 So.2d 714 (Fla.1978); Gotshall v. Taylor, 196 So.2d 479, 481 (Fla. 4th DCA 1967), cert. denied, 201 So.2d 558 (Fla.1967). Mr. Clemons's attempt to convey the remainder interest in the homestead to Ms. Thornton by the deed he executed on February 23, 1993, did not succeed, because Mrs. Clemons did not sign the deed.

[3d Question:]  If the deed is invalid as to the conveyance of a remainder interest, was the life-estate conveyance to second wife also invalidated?  NO

This third point makes clear that a deed can be partially valid, and partially invalid.  In other words, it's not an all or nothing proposition.  Here's how the 2d DCA explained this point:

The fate of the intended grant of the remainder interest has no bearing on the validity of the grant of the life estate. See generally W.W. Allen, Annotation, Prior estate as affected by remainder void for remoteness, 168 A.L.R. 321, 322 (1947) (“[P]rovisions of a ... deed, valid in themselves, are as matter of course to be given effect notwithstanding the invalidity of other provisions, unless ... to permit the valid to take effect without the invalid would produce results presumably objectionable to ... [the] grantor.”); see also Leffler v. Leffler, 151 Fla. 455, 10 So.2d 799, 804 (Fla.1942) (en banc) (“Where the will provides for successive estates the invalidity of one may not affect the others as for example, the invalidity of a trust in remainder may not affect the validity of a trust for the life tenant ....”) (quoting Schouler on Wills, Executors and Administrators, Vol. 2, 6th ed., par. 902, pp. 1039-41).

[4th Question:]  What happens to invalidly conveyed homestead property?

This last issue is probably of most interest to probate counsel.  Here's the "estate plan" Florida law imposes on your homestead property in the absence of a legally-effective deed/will.

Mr. Clemons retained the remainder interest as his sole property, because the deed was ineffective to convey it. When the fee owner of homestead dies intestate “survived by a spouse and lineal descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the lineal descendants in being at the time of the decedent's death.” § 732.401(1), Fla. Stat. (2000). The failure of Mr. Clemons's attempt to convey the remainder interest to Ms. Thornton redounded to the benefit, not of Mrs. Clemons, but of Mr. Clemons's lineal descendants, including Ms. Thornton. Only if Ms. Thornton (and her descendants, if any, see § 732.104, Fla. Stat. (2000) (“Descent shall be per stirpes ....”)) had been Mr. Clemons's sole survivor(s), would the summary judgment be affirmable in toto-and she has pleaded the existence of other survivors. Upon his death, the remainder vested in his lineal descendants, per stirpes, pursuant to sections 732.104 and 732.401(1), Florida Statutes (2000).

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The Associated Press just reported in Sperm Donor Case Heads for U.S. Supreme Court that a Topeka, Kan., man seeking parental rights to children conceived with sperm he donated is petitioning the U.S. Supreme Court to take his case.  For those of you who like your news served up on TV, [click here] for a local-news piece reporting on the same story.

The case reported on in the AP piece arises out of a Kansas Supreme Court ruling holding that a Kansas state law that doesn't give sperm donors any parental rights unless there's a written agreement is indeed constitutional.  As I noted when I first wrote about this case, the result would have been the same under Florida law [click here].

From a probate/inheritance-law viewpoint, I see this case as yet another example of the challenges our society (and by extension probate courts and lawyers) will have to confront as technology races ahead in the development of new forms of assisted reproductive technology, a point I've written about before and that is receiving quite a bit of academic/media attention lately [click here].

My bet is that the U.S. Supreme Court will take a pass on this case opting to allow more state courts to take a crack at the issue before weighing in with it's own conclusions.  But then again, you never know.  If the U.S. Supreme Court does take this case the ramifications could be huge, and not just with respect to inheritance rights.  Although I can't point to them exactly, I would imagine that somewhere in this case lurking in the underbrush are issues relevant to the abortion debate.  Any time the U.S. Supreme Court steps into that minefield (no matter how obliquely), the stakes are always sky high.

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Brooks v. AMP Services Ltd., --- So.2d ----, 2008 WL 373423 (Fla. 4th DCA Feb 13, 2008)

The prior opinion dated February 13, 2008 was withdrawn and substituted with the following in its place: Brooks v. Amp Services Ltd., --- So.2d ----, 2008 WL 1806204 (Fla.App. 4 Dist. Apr 23, 2008)

At issue in the linked-to case was whether a probate court could vacate its prior order granting a NY attorney's pro hac vice motion for purely technical reasons that had nothing to do with intentional misconduct by the NY attorney and in no way adversely impacted that administration of justice here in Florida.  Although the answer should be an obvious "no", the probate court ruled the other way.  Here's how the 4th DCA explained its rationale for quashing the probate court's order:

Here, the judge revoked Brooks' admission based only on his failure to corroborate his good standing [in NY] before applying [in FL], an act which did not affect the administration of justice or disrupt any proceedings.  .  .  .

*     *     *     *     *

“The right of an attorney of another state to practice is permissive and subject to the sound discretion of the court to which he applies for the permission. The right to revoke this permission is inherent in the right to grant it.” Parker v. Parker, 97 So.2d 136, 137 (Fla. 3d DCA 1957). Certainly a trial court's discretion to deny a motion to appear pro hac vice, or to revoke such admission, is quite broad. See Huff v. State, 569 So.2d 1247, 1249 (Fla.1990); Jernigan, 751 So.2d at 681. Nevertheless, it is not absolute, and must be balanced by a party's right to representation by counsel of choice.  .  .  .

The trial court apparently accepted Brooks' explanation that he had no reason to believe he did not continue to be in good standing; it did not find he had committed any intentional misconduct, refusing to sanction him even with the imposition of a fine. Its vacation of his status was merely for a technical reason which in no way adversely impacted the administration of justice. Even if it was appropriate technically to vacate Brooks' prior admission due to his lack of good standing on July 11, the trial court should have accepted his ore tenus motion to appear pro hac vice on August 29, when that deficiency no longer applied. The trial court's refusal to do so did not serve the ends of justice and we conclude that it constituted a departure from the essential requirements of law under the facts of this case.

As a bonus point to this blog post, readers should note that that the Florida Supreme Court has provided a suggested form of pro hac vice motion in Fla. R. Jud. Admin. 2.510.  Counsel should always use the court-suggested form.

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Mark Fass of the New York Law Journal reported in N.Y. High Court Finds Adopted-Out Child Has No Claim to Jell-O Fortune on an interesting case determining the inheritance rights of a woman given up for adoption by her birth mother.  I've written about this case before [click here].  In Florida the answer when it comes to adopted-out children is clear: subject to a few specific exceptions, an adopted-out child is not considered an heir of the birth mother.  Here's the relevant Florida statute:

732.108 Adopted persons and persons born out of wedlock.--

(1) For the purpose of intestate succession by or from an adopted person, the adopted person is a descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent's family, and is not a descendant of his or her natural parents, nor is he or she one of the kindred of any member of the natural parent's family or any prior adoptive parent's family, except that:

(a) Adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and the natural parent or the natural parent's family.

(b) Adoption of a child by a natural parent's spouse who married the natural parent after the death of the other natural parent has no effect on the relationship between the child and the family of the deceased natural parent.

(c) Adoption of a child by a close relative, as defined in s. 63.172(2), has no effect on the relationship between the child and the families of the deceased natural parents.

For me the inheritance rights of adopted-out heirs are relatively easy to figure out.  What is much more difficult for courts to figure out are the inheritance rights of heirs conceived as a result of new developments in assisted reproductive technology [click here], or inheritance rights based on advanced DNA testing [click here].  Now that's hard.

Coming back to the linked-to story out of N.Y.  When reading the following excerpt, aside from the substantive-law issues regarding inheritance rights of adopted-out heirs, I was struck by the roller coaster ride that litigation can be for clients and counsel alike.  The poor woman at the center of this case went from a trial-court ruling holding that she didn't get a dime of the fortune created by her biological great grandfather, to an intermediate appellate decision reversing the trial court and ruling she was entitled to an approximately $3.5 million share of the estate, to a final appellate ruling swinging back to the original ruling that gave her nothing.  I think there's a lesson in here somewhere about litigation in general, but that's for a later day.  OK, so here's the excerpt from N.Y. High Court Finds Adopted-Out Child Has No Claim to Jell-O Fortune:

The daughter of an heir to the Jell-O fortune, who spent 14 years looking for her birth mother, is not entitled to a multimillion-dollar share of two disputed trusts, the New York Court of Appeals ruled Thursday.

In a separate ruling Thursday involving two joined cases, Matter of Adult Home at Erie Station, 21, and Regional Economic Community Action Program v. Bernaski, 22, the state's highest court ruled that an Orange County city improperly denied tax exemptions to a home for the elderly and a social work organization devoted to the poor.

In the disputed trusts decision, Matter of the Accounting by Fleet Bank, 27, the court reversed the Appellate Division, 4th Department, finding that the law in effect at the time of the execution of the trusts, in 1926 and 1963, does not imply the right for an adopted-out child to share in a class gift.

The unanimous court also found that public policy precludes office manager Elizabeth McNabb, 52, from receiving shares of two trusts created to benefit her birth mother's "descendants" and "living children."

Citing the court's own 1985 decision Matter of Best, 66 NY2d 151, Chief Judge Judith S. Kaye wrote, "As the Court noted, the finality of judicial decrees would be compromised if adopted-out children were included in such class gifts 'because there would always lurk the possibility, no matter how remote, that a secret out-of-wedlock child had been adopted out of the family by a biological parent or ancestor of a class of beneficiaries.'"

McNabb was born out of wedlock, and her mother consented to her adoption by strangers. She began her quest to find her birth family in 1974, at age 19. She finally uncovered the identity of her mother, Barbara Woodward of Rochester, N.Y., in 1988, when she uncovered a copy of her birth certificate from a Salem, Ore., vital-statistics office.

McNabb then called every Woodward in a Rochester phone book, finally hitting upon a cousin of her mother who passed on Ms. Woodward's married name, Barbara W. Piel.

Piel's grandfather, Francis Woodward, purchased the rights to the gelatin he would soon rename Jell-O in 1899 for $450.

McNabb called Piel, and the two soon developed a relationship. Shortly after Piel's death in 2003, McNabb received a phone call from a Fleet Bank trustee, requesting proof of her relationship to the late Piel.

After the bank determined that McNabb was not entitled to a share of the trusts benefitting Piel's children, she intervened in the Surrogate Court's settlement of the trusts.

In December 2005, Monroe County Surrogate Judge Edmund A. Cavalruso decreed that McNabb did not constitute a "descendant" or "child" of her birth mother and therefore was not an intended beneficiary.

Last March, the 4th Department reversed, effectively granting McNabb an approximately $3.5 million share of the two trusts.

Thursday, the Court of Appeals again reversed, holding that McNabb is in fact not entitled to any part of the trusts intended to benefit her birth mother's children.

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Perry v. Perry, --- So.2d ----, 2008 WL 588901 (Fla. 4th DCA Mar 05, 2008)

4th DCA Judge Gary M. Farmer penned a thoughtful concurring opinion in this case dissecting the following question:

When a decedent's will violates the terms of his divorce settlement agreement, as incorporated into a final judgment of divorce, what recourse do the rightful beneficiaries of the estate have?

Judge Farmer's analysis of this question provides an excellent road map for probate counsel to follow if ever presented with a similar set of facts.

1st Theory: Breach of Contract Claim:

When a will violates the terms of a valid contract, the primary remedy is an independent action for breach of contract - not a frontal assault on the will itself.  In other words, a will can be perfectly valid and also be in breach of a contract.  The remedy then is a suit for damages resulting from the contract breach, not an order declaring the will invalid and not subject to probate.  Here's how Judge Farmer summarized current Florida law on this point:

“Florida courts have held that ... the proper remedy for an alleged breach of a contractual provision in a will is an independent civil action for breach of contract. See Johnson v. Girtman, 542 So.2d 1033, 1035 (Fla. 3d DCA 1989); In re Estate of Algar, 383 So.2d 676, 677-78 (Fla. 5th DCA 1980); Sharps v. Sharps, 219 So.2d 735, 737 (Fla. 3d DCA 1969).”

Essentially these cases stand for the proposition that a will leaving property to someone to carry out a contractual duty is revocable even though the revocation breaches the contract, and so the remedy is an independent action for breach of contract.

2d Theory: Challenge the Will on the Grounds of Illegality:

What if the will-contract at issue is incorporated into a final judgment, as is common in divorce proceedings?  This is where Judge Farmer's analysis is most interesting.  According to Judge Farmer a will that violates a final judgment is analogous to a will containing a illegal clause, and thus the offending clause may be ignored.  This is a will-construction argument that is very different from the breach-of-contract theory I've always thought was primarily at issue in these cases.  Here's how Judge Farmer explained this point:

[A] bequest in violation of the rule against perpetuities is in opposition to the law of descent and distribution.FN3 Probate courts have a long tradition of refusing to carry out will provisions involving some attendant illegality in the distribution of decedent's property. Another example-much beloved of the jurisprudes FN4 is Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889), which held that the laws governing probate of wills and the distributions of estates, even though plainly requiring otherwise, will not be enforced to secure the benefit of a will to a legatee who has killed the testator in order to prevent a revocation of the will.

FN3. The common law rule against perpetuities has been replaced in Florida by statute. See § 689.225(7), Fla. Stat. (2007).

FN4. These legal philosophers cite Riggs as one of the chief examples of the incoherence of law-that is to say that opposing outcomes in legal disputes may both be justified by the legal corpus and that, contrary to the positivists, law is not a prediction of what a judge will do in a given case.

In this case, a substantial issue might be raised as to whether the probate court could properly enforce a will provision made in direct violation of a permanent injunction in a final judgment commanding the decedent to dispose of another person's property in a certain way. If a court of competent jurisdiction has already determined by permanent injunction that decedent may name only his children by an earlier marriage under the power of appointment, by what theory may the Probate Judge enforce a willful violation of that injunction? After all, a violation of a permanent injunction is as much a violation of the law as a bequest extending beyond the period of perpetuities.

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Young v. Kurlansik, --- So.2d ----, 2008 WL 508427 (Fla. 4th DCA Feb 27, 2008)

The trustee of a decedent's revocable trust and the personal representative of the decedent's estate are inextricably linked because the PR has a claim on all assets of the revocable trust needed to pay probate administration expenses.  F.S. 736.05053.  Although this background information is not addressed in the linked-to opinion, I am assuming it had something to do with the underlying litigation. 

In the linked-to case the PR sued the trustee of the decedent's revocable trust over a promissory note executed by the trustee.  The PR apparently had a good day at trial, because the trial-court judge not only awarded the PR damages on the promissory note (implying the note had been breached and was no longer in effect), but also "reformed" the promissory note to include omitted terms (implying the note was still in effect and would now be enforced in accordance with the new terms added by the judge).    The trustee cried foul, arguing you can't have it both ways, and the 4th DCA agreed, reversing the trial court's judgment as follows:

In its final judgment the trial court reformed a promissory note to include omitted terms. At the same time it entered a judgment for damages based upon several legal theories that the appellants engaged in tortious conduct by omitting those terms. The amount of the damages constituted the principal amount of the note, and in her complaint appellee had requested damages and cancellation of the note.


*     *     *     *     *

We reverse the final judgment with directions that the trial court shall allow the appellee to elect her remedy. Electing reformation will permit the appellee to sue on the promissory note and foreclose on the mortgage securing the note. The promissory note and mortgage also include an attorney's fee provision. Electing a judgment for damages constitutes a disavowal of the promissory note and will require its cancellation. It will permit the appellee to obtain interest at the statutory rate instead of the promissory note rate. The trial court will then enter judgment on the remedy elected by the appellee. That remedy would include prejudgment interest, which we conclude is proper for this pecuniary loss. See Siedlecki v. Arabia, 699 So.2d 1040, 1042 (Fla. 4th DCA 1997).

Lesson learned?

Sometimes "probate" litigation has nothing to do with Florida's probate code.  In those cases I'm a big believer in co-counseling with competent counsel specializing in the particular type of case at issue, e.g., breach of a promissory note.  Bringing in specialized co-counsel is good for the client: the cost is usually equal to or less than the cost of paying me to handle the case solo, and the end results are usually better.  Who can argue with that math?

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• 4th DCA: Perry v. Perry, --- So.2d ----, 2008 WL 588901 (Fla. 4th DCA Mar 05, 2008) (Breach of Contract to Make Will)

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The materials distributed for the last meeting of the Florida Bar's Probate & Trust Litigation Committee included a subcommittee report entitled Collateral Attack on the Validity of A Marriage after Death Based Upon Undue Influence [click here then scroll down to AGENDA ITEM 6]. 

The subcommittee report provides an excellent state-by-state survey of current law regarding challenges to deathbed marriages and is well worth reading.  The report concludes with proposed legislation that would give a decedent's heirs standing to challenge a deathbed marriage on the grounds of fraud, duress or undue influence.  I think this is good public policy and the subcommittee members (John Moran, Bill Hennessey, Laura Sundberg, and Russ Snyder) should be commended for a job well done. Here's the report's conclusion and recommended statutory fix:

VI. Conclusion

In sum, Florida follows the common law and majority rule which only allows void marriages to be challenged after death. In most instances, Florida courts have held that marriages procured by fraud, duress, and undue influence are merely voidable, affording potential heirs no ability to challenge a marriage after death. Given the extensive rights available to a surviving spouse, a wrongdoer can profit significantly by simply inducing or influencing an elderly person to enter into a marriage. The Subcommittee recommends that the full committee consider and discuss legislation to address this issue.

VII. Proposed Statute

Over the last several meetings, the Probate and Trust Litigation Committee discussed and debated a legislative change to permit a challenge to a marriage procured by fraud, duress, or undue influence. At the August 2, 2007 meeting in Palm Beach, a straw vote revealed that a majority of the Committee was in favor of working on a proposed legislative fix. Accordingly, the proposed statute set forth below would provide an avenue to attack a marriage on the basis of fraud, duress, or undue influence after the death of a party to the marriage. The proposed statute aims to narrowly focus on inheritance rights. The proposed statute also borrows from F.S. §732.802 (the slayer statute), F.S. §732.5165 (effect of fraud, duress, mistake, and undue influence), and F.S. §733.107 (burden of proof in contests; presumption of undue influence).

73X.XXXX. Challenge to marriage procured by fraud, duress, or undue influence

     (1) An action to challenge a marriage may be maintained by any interested person after the death of the husband, wife, or both in any proceeding under chapters 731 through 736, 744, 747, and the Florida Probate Code, in which the fact of marriage may be material, either directly or indirectly.

     (2) The scope of this section is limited to all inheritance rights or other benefits a surviving spouse or any other person may acquire as a result of the surviving spouse's marriage to the decedent, including any rights or benefits acquired under chapters 731 through 736, 744, 747, and the Florida Probate Code.

     (3) A marriage is void for all purposes under subsection (2) if it is procured by fraud, duress, or undue influence.

     (4) In all proceedings contesting a marriage under this section, the contestant shall have the burden of establishing, by clear and convincing evidence, the grounds on which the marriage was procured by fraud, duress, or undue influence.

If after reading the linked-to subcommittee report you're still not convinced that the proposed Florida legislation is a good thing, then you need to read a newly-published law journal article that advocates strongly for exactly the type of legislation being proposed here in Florida.  As reported here in the Wills, Trusts & Estates Prof Blog, Terry L. Turnipseed (Assistant Professor of Law, Syracuse University College of Law) has recently published his article entitled How Do I Love Thee, Let Me Count the Days: Deathbed Marriages in America.  Here's the article's abstract:

Abstract:

Should you be able to marry someone who has only days to live? If so, should the government award the surviving spouse the many property rights that ordinarily flow from marriage?

In almost every state, the only person allowed to challenge the validity of a marriage (or, by extension, the property consequences thereof) after the death of one of the spouses is the surviving spouse! Seems incredible, does it not? The expectant heirs of a dying man (or woman) who marries on his (or her) deathbed cannot challenge the marriage post-death. Ironically, the one person allowed to challenge is the only person who has absolutely no motivation to do so.

How did this rule come about? What, if anything, should we do to change it?

This article explores these and other related questions, including a proposed theoretical framework for a model act giving heirs and beneficiaries standing to sue in order to negate the property consequences that flow from marriage, depending on the level of mental capacity at the time of the marriage.

Individuals on their deathbeds have just as much right to marry as anyone, and if competent and under no duress, the parties to the marriage certainly should have protection under the law. Protection should be appropriately shaped to avoid harassment of widows and widowers.

However, I simply cannot see a valid argument for denying a decedent-spouse's heirs (those who would take the decedent's property if he or she died unmarried and intestate) and beneficiaries (those who would take under the decedent's valid will, if any, absent a spousal election) the right to challenge the property consequences of a suspect marriage, especially when that challenge is based on traditional grounds that might naturally flow from a deathbed marriage.

Ironically, a decedent on their deathbed may not have the legal capacity to enter into a contract but can get married. It is only reasonable that these poor people and their heirs and beneficiaries should have state protection against a surviving spouse taking some or all of the decedent's property. Protection of heirs and beneficiaries is necessary where a surviving spouse may have few legitimate motives for entering into a deathbed marriage, particularly in light of the surviving spouse's ability to take some or all of the decedent's property.

The current incentives are off kilter. A greedy potential spouse has every incentive to find a minister or officer of the law willing to marry them off to a wealthy sick person and no legal incentives not to try it. No matter how ugly the situation, a marriage becomes set in stone with no person other than the surviving spouse allowed standing to seek redress in a court of law upon the death of one of the spouses. Allowing, in an appropriate way, heirs and beneficiaries to challenge the property consequences of a suspect marriage puts in place the proper disincentives before attempting to take advantage of one of feeble mind and spirit.

If these property consequences are allowed to stand, victims will continue to abound in deathbed marriage situations where consent is lacking: the decedent, her family, and society generally. Just imagine how you would feel losing an expectancy in such circumstances.

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This letter from Miami-Dade County Chief Judge Joseph Farina was recently emailed to Miami-Dade County attorneys asking us to get involved in the political process revolving around looming budget cuts.  According to Judge Farina:

The judicial branch was recently advised that due to the State of Florida's budgetary deficit totaling approximately 4 billion dollars, the State Courts' budget would have to be reduced by more than 16 million dollars by June 30, 2008. While this unanticipated reduction amounts to only 0.06% of the state budget, the loss of these funds would be devastating to  the judicial branch and its ability to provide access to justice and quality service to the public.

Should probate litigants "opt out" of the public court system?

As a "user" of Florida's court system faced with the negative consequences of an underfunded system, I have the option of passively accepting the status quo and simply resigning myself to doing the best I can under less than ideal circumstances.  Another possible reaction is to opt out of the public court system whenever possible.  There are no jury trials in probate litigation, so these cases lend themselves to alternative dispute resolution mechanisms.  Fortunately, existing Florida law provides litigants and their attorneys a wide menu of ADR options to chose from, including:

[1]  Court-ordered mediation (F.S. 44.102).  This option is well-known and commonly used.  It's not really an alternative to the public court system because there's no third party acting as "judge" to resolve the dispute.  The parties either voluntarily come to an agreement - or they don't - and end up right back in the public court system.

[2]  Court-ordered, nonbinding arbitration (F.S. 44.103).  This option is a little closer to private litigation because you have an independent third party making findings of fact and law that can end up in a legally-binding judgment.  Although the parties don't have to live with the arbitrator's ruling if they don't want to, if you decide to reject the arbitration ruling and go back into the public court system for a trial you may have to pay the other sides attorney's fees and costs if your after-trial judgment isn't at least 25% higher than what you got from the arbitrator.  This can be a powerful incentive to stick with the arbitration ruling.

[3]  Special Masters (Florida Rule of Civil Procedure 1.490; Florida Probate Rule 5.697).  Special masters can perform a wide variety of tasks usually shouldered by the trial judge directly. They serve various roles in pretrial discovery and proceedings, facilitate the mediated settlement of cases, make recommendations and submit reports to judges, assist with complex issues, chair advisory committees composed of lawyers of record, help administer class actions and settlements, propose orders jointly recommended by the parties, make decisions based on judicial reference or the parties' consent, and become engaged in post-trial proceedings.  In short, special masters are a flexible and commonly-used means of lightening the load for overburdened trial judges while also making life much easier for the litigants.  A recent Florida Bar Journal article by Howard R. Marsee entitled Utilizing "Special Masters" in Florida: Unanswered Questions, Practical Considerations, and the Order of Appointment does a good job of explaining all the ins and outs of using special masters in Florida litigation.

[4]  Voluntary trial resolution a/k/a "Rent-a-Judge"  (F.S. 44.104).  This is Florida's version of California's "rent-a-judge" statute, which first gained prominence in the early '80s.  I'm intrigued by this concept.  Why put up with an underfunded public court system when you can hire a judge with subject-matter expertise and get all the benefits of a trial and the right to appeal an adverse ruling while avoiding the worst aspects of the public court system?

The following excerpt from a piece in Time entitled Rent-a-Judge does a good job of describing the pros and cons of the rent-a-judge option in plain English:

Once both sides in a dispute agree to set up their own court, they select a judge (so far all have been retired jurists) and settle on his pay (usually $125 an hour, split by the parties). If the regular court approves, trial can begin when and where the litigants choose.

By averting the 4½-year wait for trial, parties almost automatically save money. Normally, Chodos asserts, "lawyers have to justify their existence, so they file 39 depositions and countless motions that are meaningless but costly." Another advantage of the system, particularly important to litigants in complicated business cases, is that parties can pick judges with expertise in certain fields. Moreover, proceedings can be held in secret and kept off the public record. When Tonight show Host Johnny Carson and NBC were battling over his contract in 1979, they hired a retired judge to hear their megabuck dispute behind closed doors. (Before the trial began, however, they settled the case.)

Judges regard the system as the best thing since raised benches. Los Angeles jurists, who earn $60,000 a year, retire comfortably: a 20-year man receives a pension of $45,000. But an energetic ex-judge can increase that income greatly by freelancing. Eugene Sax received more than $40,000 for five months of work on a dispute between California's air resources board and several oil industry giants.

Because private courts can work only when both parties want a prompt decision, their growth potential is limited. Explains Judge Schauer: "Over 99.9% of our cases involve one side that doesn't want to go to court. Defendants don't want that day of judgment." The typical rent-a-judge case involves squabbling business partners who are eager to get a ruling and resume their profitable venture. Recently, private judges have also started handling family law matters.

The private jurist program resembles arbitration, a widely used procedure that calls on a non-judge to resolve disputes typically involving labor contracts. But the California procedure has some features that arbitration does not. Examples: the judge must adhere to regular procedural and substantive aspects of law, and decisions can be appealed.

For Florida-specific articles describing our rent-a-judge statutory regime see: Christopher M. Shulman's “Voluntary Trial Resolution: Tailor-Made for Employment Claims”, The Checkoff, Vol. XLII, No. 3, at 5 (Florida Bar Labor and Employment Section May 2004) [click here]; and Cary R. Singletary's "Voluntary Trial Resolution - A New Dispute Resolution Process in Florida," The Checkoff, Volume XXX, No. 4, July 2000, The Florida Bar [click here].

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RBC Ministries v. Tompkins, --- So.2d ----, 2008 WL 398821 (Fla. 2d DCA Feb 15, 2008)

How a will contest is framed can make all the difference in the world.  If the will is being challenged on undue influence grounds, you can forget ending the case at a summary judgment hearing once the "presumption" of undue influence is established.  The probate court in this case ruled differently, and was reversed on appeal.  The following excerpts from the linked-to opinion sum up the 2d DCA's analysis of the controlling Florida law on this point.

The rebuttable “presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof.” § 733.107(2), Fla. Stat. (2005). Such a presumption “affecting the burden of proof”-as distinct from a presumption affecting the burden of producing evidence-“imposes upon the party against whom it operates the burden of proof concerning the nonexistence of the presumed fact.” § 90.302(2), Fla. Stat. (2005). Accordingly, once a will contestant establishes the existence of the basis for the rebuttable presumption of undue influence, the burden of proof shifts to the proponent of the will to establish by a preponderance of the evidence the nonexistence of undue influence. Diaz v. Ashworth, 963 So.2d 731, 735 (Fla. 3d DCA 2007); Hack v. Janes, 878 So.2d 440, 443-44 (Fla. 5th DCA 2004).

*     *     *     *     *

“[O]nce the presumption arises, the undue influence issue cannot be determined in a summary judgment proceeding.” Allen v. In re Estate of Dutton, 394 So.2d 132, 135 (Fla. 5th DCA 1981). “[A] summary judgment cannot be entered in favor of one who has the burden of overcoming the presumption of undue influence for such proceeding does not afford the contesting party the right of cross-examination and an opportunity to present rebuttal testimony.” Knight v. Knight (In re Estate of Knight), 108 So.2d 629, 631 (Fla. 1st DCA 1959). Instead, “the proponent of the contested will must come forward with a reasonable explanation of his active role in the decedent's affairs,” and “the trial court is left to decide the case in accordance with the greater weight of the evidence.” Allen, 394 So.2d at 135.

Lesson learned?

In an undue-influence case, establishing the presumption of undue influence doesn't just shift the burden of proof, it forecloses the prospect of a quick win on summary judgment for the proponent of the will.  Understanding this point is key to understanding how high the stakes are - for both sides - once a court is asked to rule on whether the presumption's been triggered.

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