Amy B. Beller of Beller Smith, P.L., in Boca Raton, Florida, was on the winning side of Pajares v. Donahue, --- So.3d ----, 2010 WL 934101 (Fla. 4th DCA Mar 17, 2010), an interesting case I wrote about here involving the enforceability of will devising homestead property (always a tricky issue).
I invited Amy to share some of the lessons she drew from this case with the rest of us and she was kind enough to accept.
[Q] What strategic decisions did you make in this case that were particularly outcome determinative at trial? On appeal?
[A] I struggled with the decision of whether or not to agree that extrinsic evidence was not required and, in fact, my submissions at the trial court level were equivocal on this point. Because fees were an issue for my clients, I did not take any discovery and so I did not know whether extrinsic evidence would be helpful or harmful. In the end, I decided that if the trial court had to decide the case without the benefit of extrinsic evidence, the court would more than likely decide in my favor, and my clients, after being apprised of the risk, agreed with this strategy.
[Q] Would you have done anything differently in terms of framing your case for your probate judge?
[A] No -- I believe the determining factor was that the Will contained cash bequests which could not be paid unless they were to be paid from the sale of the homestead, to be paid "from the sale" of the homestead property. This clearly provided me with a strong argument that the testatrix intended the homestead to be sold.
[Q] From your perspective as probate litigator, do you think there’s anything that could have been done in terms of estate planning to avoid this litigation or at least mitigate its financial impact on the family?
[A] Most definitely! This was apparently a self-made Will created from an internet form. Need I say more? (Note to estate litigators: be ye thankful for the internet Will form, for it brings forth the fruit of tomorrow's litigation.)
[Q] Any final words of wisdom for probate lawyers of the world based on what you learned in this case?
[A] I stand on the shoulders of our real homestead experts (Kelley, Felcoski & Scuderi, Stone, Baskies, to name a few) and don't feel qualified to offer any wisdom to my colleagues at the Bar. But obviously homestead is still a developing area of the law, with plenty of room for zealous litigation. A good appellate decision is the product of good lawyering on both sides. Therefore, I want to acknowledge the excellent efforts of opposing counsel, Jay Kauffman, Esq., of Herb & Kauffman.