I head my firm’s litigation practice, which covers all aspects of inheritance, probate and trust litigation. I was voted the 2016 lawyer of the year in Best Lawyers for trusts and estates litigation in Miami, Florida, and have been rated a “top lawyer” in my field by Super Lawyers since 2013. In addition to an active litigation practice, I also mediate trusts and estates cases and am certified by the Florida Supreme Court as a Circuit Civil Mediator (certification # 32893 R). Click here for my mediator’s pledge.
My team’s developed specialized experience in cross-border estate matters, and in connection with that work I’m a member of the Miami branch of the Society of Trust and Estate Practitioners (STEP), a worldwide association of trusts and estates professionals, and STEP’s litigation arm, referred to as the Contentious Trusts and Estates Global Special Interest Group. Although most of our international work never makes the headlines, we were lead counsel in the widely-reported burial dispute involving former Venezuelan President Carlos Andrés Pérez (in which our clients prevailed, click here), and served as lead U.S. counsel for the Thomas & Agnes Carvel Foundation in a case we successfully litigated in the London Chancery Division, resulting in a reported opinion: Thomas & Agnes Carvel Foundation v Carvel  EWHC 1314 (Ch).
Education and Teaching Experience:
I’m a 1996 graduate of the New York University School of Law (J.D.), and a 2003 graduate of the University of Miami School of Law (LL.M. in Estate Planning). I’ve previously served as an adjunct law professor for the LL.M. in Estate Planning program at the University of Miami School of Law, and frequently lecture at continuing legal education seminars for professional groups on areas related to trusts and estates.
I’ve been publishing the Florida Probate & Trust Litigation Blog since 2005, which is eons ago in internet years. I also co-authored the Florida probate chapter of International Succession, published by Oxford University Press, and was the sole author of the Florida chapter of ADR and Trusts: an international guide to arbitration and mediation of trust disputes, published by Spiramus Press.
Prior to law school I volunteered for service in the United States Marine Corps Reserve from 1987 to 1993 (4th ANGLICO, West Palm Beach, Florida), including combat duty during the Persian Gulf War. In addition to managing not to get myself shot, after the war I ended up with the Combat Action Ribbon, Kuwaiti Liberation Medal, National Defense Service Medal, Southwest Asia Service Medal, Army Commendation Medal, and Meritorious Unit Citation.
Norman Rockwell’s The Right to Know:
One of the obvious themes of this blog is the value of transparency, which is why I thought Norman Rockwell’s The Right to Know was the perfect masthead illustration.
As explained here on the Rockwell museum’s website, “[a]ccording to Rockwell’s calendar notes he spent between April and June of 1968 working on The Right to Know. That same year America witnessed the assassinations of Martin Luther King, Jr. and Robert F. Kennedy, an escalating war in Vietnam, and the tumultuous presidential race which brought Richard M. Nixon to the White House. A reflection of Rockwell’s personal beliefs, The Right to Know illustrated an editorial which advocated for government transparency in light of the growing opposition to the Vietnam conflict, or in his own words, ‘the Information Gap that existed between government and the public.'”
The virtue of compromise:
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be enough business.”
“You don’t have to attend every argument you’re invited to.”
“What I admire most in any [litigator] is a serene spirit, a steady freedom from moral indignation, an all-embracing tolerance — in brief, what is commonly called good sportsmanship. Such a man is not to be mistaken for one who shirks the hard knocks of life. On the contrary, he is frequently an eager gladiator, vastly enjoying the opposition. But when he fights he fights in the manner of a gentleman fighting a duel, not in that of a longshoreman cleaning out a waterfront saloon. That is to say, he carefully guards his amour proper by assuming that his opponent is as decent a man as he is, and just as honest — and perhaps, after all, right. Such an attitude is palpably impossible to [the ‘Rambo’ litigator]. His distinguishing mark is the fact that he always attacks his opponents, not only with all arms, but also with snorts and objurgations — that he is always filled with moral indignation — that he is incapable of imagining honor in an antagonist, and hence incapable of honor himself. Such fellows I do not like. I do not share their emotion. I can’t understand their indignation, their choler. . . . .”
– Mencken Chrestomathy, by H.L. Mencken
This is a CIVIL division. “Rambo lawyering” will not be tolerated. Counsel will treat jurors, parties, witnesses, me, my staff, and each other with professionalism, courtesy and respect at all times. This applies not only to the actual trial, but to all aspects of the case, including discovery and motions practice, and includes what is written as well as what is said.
– Colorado State Court Judge Robert McGahey, Jr., Pretrial Order § IV(5) (2012) (quoted in Working Smarter, Not Harder: How Excellent Judges Manage Cases)
“The oft-quoted adage, ‘a man who represents himself has a fool for a client,’ is particularly wise because it recognizes the beneficial nature of having an objective advocate. The role of an attorney is to ensure that the best legal interests of his or her clients are being served. Often, a client’s best legal interests are inconsistent with the client’s driving emotions. Therefore, the attorney should take great care to remain objective and quell any emotions that would be detrimental to the client’s interest. The [litigant] did not have such an attorney in [this case] . . . . Consequently, this litigation ensued without the proper and necessary objective preliminary investigation.”
U.S. District Judge Marcia Cooke, Miccosukee Tribe of Indians of Florida v. Cypress, Slip Copy, 2015 WL 235433 (S.D.Fla. January 16, 2015) (Lawyer ordered to pay more than $1 million in sanctions for frivolous claim)
“Vulgarity is no substitute for wit.”
– Julian Fellowes, as spoken by Downton Abbey’s matriarch, the Dowager Countess of Grantham
The drama of human relationships:
“There is nothing like the death of a moneyed member of the family to show persons as they really are, virtuous or conniving, generous or grasping. Many a family has been torn apart by a botched-up will. Each case is a drama in human relationships — and the lawyer, as counselor, draftsman, or advocate, is an important figure in the dramatis personae. This is one reason the estates practitioner enjoys his work, and why we enjoy ours.”
– Jesse Dukeminier and Stanley M. Johanson, introduction to 1972 edition of Family Wealth Transactions: Wills, Trusts, Future Interests, and Estate Planning.
“Happy families are all alike; every unhappy family is unhappy in its own way.”
– Leo Tolstoy (1828 – 1910), Anna Karenina, Chapter 1, first line
“Death is not the end. There remains the litigation over the estate.”
“Keep out of [probate litigation] . . . It’s [like] being ground to bits in a slow mill; it’s [like] being roasted at a slow fire; it’s [like] being stung to death by single bees; it’s [like] being drowned by drops; it’s [like] going mad by grains.”
“Wills are uncanny and electric documents. They lie dormant for years and then spring to life when their author dies, as if death were rain. Their effect on those they enrich is never negligible, and sometimes unexpectedly charged. They thrust living and dead into a final fierce clasp of love or hatred. But they are not written in stone—for all their granite legal language—and they can be bent to subvert the wishes of the writer.”
Strangers in Paradise: How Gertrude Stein and Alice B. Toklas got to Heaven, by Janet Malcolm, The New Yorker, Nov. 13, 2006, at 57.
“A will contest, to a veteran plaintiff’s trial lawyer, battered from years of butting heads with hard-nosed insurance defense counsel, is an unfamiliar and slightly glamorous experience. The pleadings and evidence in a typical will contest read like the script from Days of Our Lives. The star in the drama is the testator, the person who wrote the will, usually painted in surrealistic black and white by the contestant as a senile, diseased, mentally unbalanced victim, the equivalent of Shakespeare’s King Lear. On the other hand, the proponent draws the testator as a wily, crafty senior citizen motivated by moral indignation to refuse to enable the bad conduct of relatives, a protean patriarch or matriarch of the same cut as Tennessee Williams’ ‘Big Daddy.’ . . .
In short, a will contest is the legal equivalent of Chaucer’s Canterbury Tales. A will contest is a colorful and tragic tapestry of human emotion and desire. The actual intention of the testator often gets lost in the side bar plots and the maneuvering of rival factions vying for a share of the wealth. The primary motive for a will contest may not be greed; it may be the desire to be vindicated, to demonstrate that the testator really loved the people who were cut out of the will.”
Hon. Eunice L. Ross and Prof. Thomas J. Reed, Will Contests, § 1:1 (2d ed.)
“Never ascribe to malice that which can adequately be explained by incompetence.”
“For every complex problem there is an answer that is clear, simple, and wrong.”
“There is nothing so practical as a good theory.”
“If I am unable to feed, clean, or dress myself, I would like to be referred to as ‘Mr. Trump.'”
“The earth belongs in usufruct to the living; the dead have neither powers nor rights over it. The portion occupied by any individual ceases to be his when he himself ceases to be, and reverts to society.”
– Thomas Jefferson (Letter to James Madison, dated Sept. 6, 1789).
“[W]hen we recollect the infirmities of old age, we must be satisfied that it is necessary not to deprive it of this counterpoise of factitious attractions [prospects of inheritance by the younger giving care to the older.] In the rapid descent of life, every support on which man can lean should be left untouched, and it is well that interest serve as monitor to duty.”
– Jeremy Bentham, The Theory of Legislation 184 (C.K. Ogden ed., 1950).
“A clear; obvious, natural line is drawn for us between those persons and events which the Settlor knows and sees, and those which he cannot know and see. Within the former province we may push his natural affections and his capacity of judgment to make better dispositions than any external Law is likely to make for him. Within the latter, natural affection does not extend, and the wisest judgment is constantly baffled by the course of events. . . . What I consider to be not conjectural, but proved by experience in all human affairs, is, that people are the best judges of their own concerns; or if they are not, that it is better for them, on moral grounds, that they should manage their own concerns for themselves, and that it cannot be wrong continually to claim this liberty for every Generation of mortal men.”
– Arthur Hobhouse, on the “cold and numbing influence of the Dead Hand.” The Dead Hand 188, 183-185 (1880).
“Money-giving is a very good criterion . . . of a person’s mental health. Generous people are rarely mentally ill people.”
– Dr. Karl A. Menninger, quoted in NEWSWEEK, November 2, 1959
“[T]he post mortem squabblings and contests on mental condition . . . have made a will the least secure of all human dealings.”
– Lloyd v. Wayne Circuit Judge, 23 N.W. 28, 30 (Mich. 1885).
“[I]n 2001 decedent took his original copy of the 1997 will, urinated on it and then burned it. We hesitate to speculate how he accomplished the second act after the first. In any event, decedent’s actions lead to the compelling conclusion he intended to revoke the 1997 will.”
– Estate of Stoker, 193 Cal. App. 4th 236 (Cal. 2011)
“To be undue influence in the eye of the law there must be — to sum it up in a word — coercion. . . . It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that is undue influence. The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at the stage of illness and pressing something upon him may so fatigue the brain, that the side person may be induced, for quietness’ sake, to do anything. This would equally be coercion, though not actual violence. These illustrations will sufficiently bring home to your minds that even very immoral considerations either on the part of the testator, or of some one else offering them, do not amount to undue influence unless the testator is in such a condition, that if he could speak his wishes to the last, he would say, ‘this is not my wish, but I must do it.'”
– Lord Justice Hannen, Wingrove v. Wingrove, 11 Prob. Div. 81 (U.K. 1885)
“But to say that a man is a fiduciary only begins analysis; it gives direction to further inquiry. To whom is he a fiduciary? What obligations does he owe as a fiduciary? In what respects has he failed to discharge these obligations? And what are the consequences of his deviations from duty?”
– Justice Felix Frankfurter, SEC v. Chenery Corp., 318 U.S. 80, 85-86 (1943)
“Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by the fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exceptions . . . . Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.”
– Justice Benjamin Cardozo, Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928)
“[A] transaction, otherwise within an exception of the tax law, does not lose its immunity, because it is actuated by a desire to avoid, or, if one choose, to evade, taxation. Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one’s taxes.”
– Judge Learned Hand, Helvering v. Gregory, 69 F.2d 809, 810-11 (2d Cir. 1934).
“The less the rewards of wealth are associated with one’s own contribution, the better the case for taxing them. . . . . Inheritance remains one of the purest forms of ‘getting something for nothing.'”
– John A. Brittain, Inheritance and the Inequality of Material Wealth 13 (1978)
“[I]n this world nothing can be said to be certain, except death and taxes.”
“Always go to other people’s funerals, otherwise they won’t come to yours.”
“What’s the takeaway?” a neighbor of mine is always asking his kids whenever they run into something harder than they are. Good question. I have no idea. The only thing your life teaches you is how to live your life. And that’s only if you’re very lucky. And you listen very hard. Life teaches elliptically, epigrammatically, retrospectively. If life was a professor, you’d flunk him on his evaluations. Just tell me the goddam answer, you want to say. It’s a race between your foolishness and your allotted days. Good luck. That’s my takeaway.
– Nobody’s Son, by Mark Slouka (The New Yorker January 6, 2014)
When you’re young, you think there’ll be plenty of time for everything in your life: counting all the grains of sand in the Sahara Desert, seeing all the people in the world, becoming greater than Jesus and Lenin and Lomonosov and Pushkin and Einstein all rolled into one, reuniting at some point with everyone you’ve met once in your life, befriending every man, falling in love with every woman… Life is a process of gradually coming to terms with the meaning and the very concept of never-ness. Never—well, so be it. Quoth the raven: oh well, them’s the breaks. Get used to it. Get over it. Life is a perishable proposition of rapidly diminishing returns. You could’ve become this or that; you could’ve been here and there and everywhere; but that didn’t happen—and well, so be it. There won’t be, in the end of your life, a joyous, transcendentally meaningful regathering of everyone you’ve ever met on your path, with stories shared and wine flowing and laughter lilting and happiness abounding and life never-ending—well, so be it.
– Life: How Was It?, by Mikhail Iossel (The New Yorker March 13, 2013)
A few months ago, Ezekiel Emanuel had an essay in The Atlantic saying that, all things considered, he’d prefer to die around age 75. He argued that he’d rather clock out with all his powers intact than endure a sad, feeble decline. The problem is that if Zeke dies at 75, he’ll likely be missing his happiest years. When researchers ask people to assess their own well-being, people in their 20s rate themselves highly. Then there’s a decline as people get sadder in middle age, bottoming out around age 50. But then happiness levels shoot up, so that old people are happier than young people. The people who rate themselves most highly are those ages 82 to 85.
– Why Elders Smile, by David Brooks (NYT 12/4/14)