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

Mark R. Manceri of Fort Lauderdale, Florida was on the winning side of Jervis v. Tucker, --- So.3d ----, 2012 WL 385518 (Fla. 4th DCA February 08, 2012), a case I wrote about here.

I invited Mark to share some of the lessons he drew from this case with the rest of us and he kindly accepted.

[Q] What strategic decisions did you make in this case that were particularly outcome determinative at the trial-court level? On appeal?

Focusing on the fact that this was a case of trust construction and not a factual question of testamentary capacity.

[Q] If you had to do it all over again, would you have done anything different in terms of framing the issues for your trial-court judge? On appeal?

I would not change the issues. However, the are several other counts of the complaint that I also feel my clients would have prevailed on if they were to be decided.

[Q] Looking back from your perspective as a litigator, do you think there’s anything that could have been done in terms of better estate planning while the trust settlor was alive to avoid this litigation or at least mitigate its financial impact on the family?

While it may not be clear from the Opinion, the appellant was the very substantial beneficiary of the change under the Second Amendment while he was serving as Guardian and the Trustee. As the Opinion states, the Court was never made aware of the change so there was a clear question of transparency that should have, in my opinion, been addressed.

[Q] Any final words of wisdom for estate planners and probate lawyers of the world based on what you learned in this case?

Remember that the fiduciaries we represent need to act under a higher standard and that should always be kept in mind.

For those of you interested in viewing past interviews done for this blog, click here.

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Steve L. Zimmerman of Zimmerman, Zimmerman & Miceli, P.A., in Pompano Beach, Florida, was on the winning side of Yawt v. Carlisle, --- So.3d ----, 2010 WL 1879697 (Fla. 4th DCA May 12, 2010), a case I wrote about here involving when a new complaint has to be filed in on-going trust litigation.

I invited Steve to share some of the lessons he drew from this case with the rest of us and he kindly accepted.

[Q] What strategic decisions did you make in this case that were particularly outcome determinative at the trial-court level? On appeal?

[A] I became involved in this case only after a default and default final judgment had been entered against my clients, who had been proceeding pro se up to that point. The situation was very dismal, but the fact that the other side was seeking some new relief gave us a small "opening" that we hoped to exploit. It was quite clear that the attorneys, all seasoned probate practitioners, as well as the judge, perhaps out of habit, just sort of handled this trust case like it was a probate case, and thus misapprehended the effect of the default and the finality of the previous judgment. The only thing I had the opportunity to do at the lower court level was to go in an "make the record." Sometimes this is a bit uncomfortable, particularly when you are dealing with very experienced and reputable probate attorney's who you see in court every day, and the former chief judge of the circuit. But sometimes you just have to do it.

[Q] Would you have done anything differently in terms of framing the issues for your probate judge? 

[A] I don't think so. The appellate opinion made a point of mentioning that the appealable issue had been properly preserved.

[Q] From your perspective as probate litigator, do you think there's anything that could have been done in terms of drafting the Land Trust at issue in this case or some other form of estate planning to avoid this litigation or at least mitigate its financial impact on the family?

[A] The appellate decision involved strictly the procedural issues. The substantive issues in this case remain to be determined. But the issues in this case will center upon what the duties of a trustee are, with respect to real property, once the beneficiaries are all adults and sui juris, and the trust purpose has been satisfied. Should the Trustee just execute the trust by conveying the property to the adult beneficiaries and then let them argue amongst themselves, or should the trustee sell the property and split up the proceeds? Obviously, some clearer drafting could have resolved these issues, but in this case, we don't have that clarity.

[Q] Any final words of wisdom for probate lawyers of the world based on what you learned in this case?

[A] Trust cases are not probate cases. This is a double edged sword. Courts do not have continuing jurisdiction to supervise the administration of trusts like they do in probate cases - nor should they. With Trusts, you get in - get your ruling on a specific issue - and get out. One of the main reasons we use revocable living trusts is for probate avoidance. If your decedent wanted the court involved in his/her estate's business he/she would not have made a living trust...

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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.

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John G. Grimsley of Grimsley Marker & Iseley, P.A., in Jacksonville, Florida, was on the winning side of Taylor v. Taylor, --- So.2d ----, 2009 WL 186155 (Fla. 1st DCA Jan 28, 2009), a case involving the enforceability of a premarital agreement waiving a widow's marital rights under F.S. § 732.702. I wrote about the Taylor case here. I first became aware of Mr. Grimsley through his work as co-author of Florida Law of Trusts, the definitive treatise on Florida trust law (his co-author is now slouch either, Prof. Powell was the scrivener for Florida’s new Trust Code).

I invited Mr. Grimsley to share some of the lessons he drew from the Taylor case with the rest of us and he was kind enough to accept.

[Q] Looking back, what strategic decisions did you make in this case that were particularly outcome determinative at trial? On appeal?

[A] My strategy at trial was to have the two witnesses and notary testify to the circumstances surrounding the preparation and execution of the premarital agreement. Part of this strategy was to inquire into the decedent's intentions and statements leading up to and including the execution of the premarital agreement. Any hearsay objection was met with the state of mind exception to the hearsay rule allowing the Judge to overrule the objection.

On appeal the main strategy was to rely on the plain language of the premarital agreement and place the agreement in the context of waiving marital rights by using the Black's Law Dictionary definition of a premarital agreement. Also, we chose not to anticipate arguments from the wife (such as the absence of specific waivers of rights in the agreement), but rather to counter those arguments in our reply brief. Specifically, that unknown rights may be waived in the premarital agreement "Indeed, Florida Statute, section 732.702(2) negates the requirements of any disclosure of assets or values for an agreement entered into before marriage."

[Q] Looking back, would you have done anything differently in terms of framing your case for the trial-court judge?

[A] When doing the brief there were several areas of testimony that I wished I had included at trial, but it turned out that relying on the plain language of the premarital agreement and the plain language of the waiver statute was sufficient.

[Q] I wrote here in 2006 about an "ambiguous" premarital agreement that the 3d DCA held was a valid waiver of a widow's marital rights under F.S. § 732.702. After reading the 2d DCA’s opinion in your case, I stated “it's impossible to reconcile the different approaches taken first by the 3d DCA in 2006 and then by the 1st DCA above when applying F.S. § 732.702 to what all of us can agree are less than artfully drafted prenuptial agreements.” Would you agree? Disagree?

[A] Agree - testimony on intent of parties supports the terms of the premarital agreement.

[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?

I believe this litigation could have been avoided by the decedent seeking the advice of an attorney in preparing a prenuptial agreement. The decedent made the same mistake in a holographic will that was notarized but had no witnesses. Even the invalid will had some probative value in showing the decedent's intent that his assets go to his son and not to his wife.

[Q] Any final words of wisdom for probate lawyers of the world based on what you learned in this case?

[A] I learned from this case that the de novo construction of a contract on appeal applied to prenuptial agreements and allowed the appellate court to interpret the premarital agreement and apply it to the waiver statute.

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Probate litigator Stephen P. Heuston of Frese, Hansen, Anderson, Anderson, Heuston & Whitehead, P.A., in Melbourne, Florida, was on the winning side of Belanger v. Salvation Army, 2009 WL 223884 (11th Cir.(Fla.) Feb 02, 2009), a high-profile case that received a good amount of press (and I wrote about here and here).  I invited Mr. Heuston to share some of the lessons he drew from this case with the rest of us and he was kind enough to accept.

[Q]  Looking back, what strategic decisions did you make in this case that were particularly outcome determinative at the trial-court level? On appeal?

[A]  The plaintiffs chose to bring the action in Federal District Court so all argument was done by written pleadings. The order from the trial court was on The Salvation Army's Motion to Dismiss, which was our first pleading filed. The point being there was very little strategic decision making due to how early we were in the process. On appeal The Salvation Army presented basically the same arguments as set forth in their Motion to Dismiss. Because the case presented an issue of first impression (the interpretation of Florida's pay-on-death statute 655.82 as to whether a charity is a permissible beneficiary) the 11th Cir. Court of Appeals heard oral arguments. Arguments made by both parties were consistent with their written briefs.

[Q]  Do you think this case will have lasting repercussions in terms of how POD accounts are used in Florida or how charities do business in Florida?

[A]  Very much so. I had many charities and the Florida Bankers Association and the International Florida Bankers Association who were following this case closely. Charities were obviously concerned because this was an inexpensive means for donors to make gifts at death. There are no legal fees or other transaction costs to set up a POD account naming a charity as a beneficiary on a bank account. There are no records kept on how much money is transferred to charities by means of POD accounts but I have been told by several charities that if donors were not able to use POD accounts to name a charity that it would have a significant negative impact on charitable fundraising. Additionally, the banks were concerned because if Florida law was interpreted to have not allowed charities to be a permissible POD beneficiary the banks were concerned about liability for having paid out to charitable POD beneficiaries since the Florida POD statute became effective in 1995. Additionally, the Florida statute was derived from the Uniform Nonprobate Transfers on Death Act, which has been adopted in some version by 48 states. A negative interpretation of the Florida statute could have had an impact on similar statutes in other states, possibly impeding this popular form of charitable giving in other states.

[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? 

[A]  Difficult to say. A similar bequest by will or trust would have been more costly to set up and could have still been challenged on other grounds by the decedent's children. One possibility would have been for the decedent, Mr. Belanger, to explain to his two children that is was his intent to leave the POD bequest to the charity and explain why he was doing so. Many challenges to bequests to charities result from the shock to the children who were unaware of their parents charitable intent. Many children in those situations feel hurt and become suspicious of the charity and its involvement in procuring the bequest. If the parent can explain to the children the purpose and reasoning for the charitable gift then this can often times eliminate or at least reduce the hurt that might otherwise result from finding out only after the parent has died.

[Q]  Any final words of wisdom for probate lawyers of the world based on what you learned in this case?

[A]  When representing charitable organizations the probate litigation attorney should advise the charity to not be intimidated by the legal process. If the facts and law favor the interest of the charity then the charity should do a cost-benefit analysis to determine if defending their interest and upholding the intent of the donor is justified. If it is justified then the charity should persevere during the legal proceeding and continue for as long as it makes economic sense. It is often times left to the charity to defend the charitable intent of the decedent. There are many in the probate process or trust administration who may attempt to frustrate the intent of the decedent, e.g. disgruntled children or other family members, and it is often advisable for the charity to defend against legal actions that impede the decedent's charitable intent.

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Probate litigator Norman A. Fleisher of Gutter Chaves Josepher Rubin Forman Fleisher P.A. in Boca Raton, Florida, was on the winning side of Hernandez v. Gil, a hard-fought case that wound up before the 3d DCA on three different occasions, resulting in a PCA and two fascinating written opinions I wrote about here and here.

Norm graciously agreed to share some of the lessons he drew from this case with the rest of us.

Hi Norm. Thanks for taking the time. First question, looking back, what strategic decisions did you make in this case that were particularly outcome determinative? Would you have done anything differently?

The most important decisions were not unusual. We were always concerned that the opposing party might try to circumvent the settlement, so our focus was to make the agreement as clear as the English language would allow. One unusual aspect of the settlement is that the opposing party was asked to personally appear before the Judge when the settlement agreement was approved and to state, under oath, that he understood the agreement, approved the agreement, and wanted the Judge to approve the agreement. The transcript of that hearing has been very useful in subsequent proceedings.

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?

Not really. The estate planning documents have never been the issue in this case. The issue has been the enforcement of the settlement agreement. Mr. Hernandez attempted to challenge his mother's documents following her death, but the settlement agreement explicitly prohibited him from making such a challenge.

The three appellate decisions in this case apparently revolved around enforcing your settlement agreement. If you knew then what you know now, would your settlement agreement have been different? How so?

I have struggled with this issue for years. I've wondered if we could have made the agreement clearer, and when preparing for the hearings and oral arguments I would play devil's advocate and try to think of ways the agreement was somehow vague or open to alternative interpretations. But fortunately, every time we brought the agreement before the court or the appellate panel the Judges always agreed that the agreement and the releases were clear.

Any final words of wisdom for probate lawyers of the world based on what you learned in this case?

As any probate litigator will tell you, trust and estate litigations are often not based on reason. It is easy for a lawyer to be dispassionate about the dispute, but for the parties these matters are deeply emotional. So even though a settlement agreement is clear, and even though an opposing party may have lost every hearing, and even though the court may have severely sanctioned the opposing party, the deeply personal nature of these matters may still cause the opposing party to refuse to quit. The lesson for lawyers was set forth in the 3rd DCA's last opinion on this matter [click here] - sometimes a lawyer who is asked to fight on for a lost cause must simply say no to a client or a potential client.

Thanks again Norm for taking the time.

Thank you for your interest.
 

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