Florida Probate & Trust Litigation Blog

Florida Probate & Trust Litigation Blog

By Juan C. Antúnez of Stokes McMillan Antúnez P.A.

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Category Archives: New Probate & Trust Cases

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2d DCA: Does Florida’s Trust Code limit — or expand upon — existing common law when it comes to terminating irrevocable trusts?

Posted in Practice & Procedure, Will and Trust Contests
Peck v. Peck, 133 So.3d 587 (Fla. 2d DCA February 26, 2014) Part IV of Florida’s Trust Code provides precise, comprehensive, and easily accessible guidance on how to modify or terminate irrevocable trusts in Florida. (Click here for an excellent chart visually summarizing all of these provisions). That being said, our Trust Code doesn’t legislate … Continue Reading

The Corcoran Gallery of Art’s trustees expertly manage the public advocacy facet of their case in support of requested “cy pres” court ruling

Posted in Gifts and Charities Litigation
A lot’s changed in the over 100 years since William Corcoran executed a “Deed of Trust” in 1869, establishing the Corcoran Gallery of Art. Falling victim to competitive market pressures, Washington’s oldest private art gallery and art college recently filed this 204-page motion and supporting memorandum of law, asking a D.C. judge to apply the … Continue Reading

2d DCA: If the judge adjudicating your divorce enters final judgment, but retains jurisdiction to decide property issues, does that jurisdictional authority evaporate if one of the parties to the original divorce proceeding dies?

Posted in Creditors' Claims, Marital Agreements and Spousal Rights, Practice & Procedure
Passamondi v. Passamondi, — So.3d —-, 2014 WL 228648 (Fla. 2d DCA January 22, 2014) The traditional rule is that an action for divorce is purely personal in nature and that the death of one of the parties causes the action to terminate or “abate.” The rationale for this rule is simple: when one of the … Continue Reading

4th DCA: Once a probate judge grants a motion to compel arbitration, can that same judge dismiss the claim because one side fails to initiate the arbitration proceeding on a timely basis?

Posted in Practice & Procedure, Will and Trust Contests
Gren v. Gren, 133 So.3d 1066 (Fla. 4th DCA January 8, 2014) Why any estate planner would in good conscious subject his or her clients to all the systemic problems inherent to our underfunded and overworked probate courts is beyond me; especially in Florida, which in 2007 was the first state in the nation to … Continue Reading

1st DCA: In case of first impression Appellate Court rules successor PR has standing to sue prior PR’s attorney for malpractice

Posted in Ethics & Malpractice Claims, Practice & Procedure
Bookman v. Davidson, — So.3d —-, 2014 WL 1772707 (Fla. 1st DCA May 05, 2014) There’s nothing like the threat of a malpractice suit to focus the mind. And in the trusts-and-estates context this risk is exponentially greater for all sorts of reasons, including the fact that you can get sued by lots of people … Continue Reading

4th DCA: Are a deceased son’s ashes “property,” subject to 50/50 partition between his divorced parents?

Posted in Practice & Procedure
Wilson v. Wilson, — So.3d —-, 2014 WL 2101226 (Fla. 4th DCA May 21, 2014) Burial disputes are gut wrenching affairs, and in my opinion (based on personal experience), Florida law remains woefully ill-equipped to handle them. The latest burial dispute to hit our appellate courts started on the night of February 12, 2010, when a Bentley … Continue Reading

What litigators can learn from the OCC’s “Comptroller’s Handbook for Fiduciary Activities”

Posted in Trust and Estates Litigation In the News, Trustees In Hot Water, Will and Trust Contests
The fiduciary duty of care sets the minimum level of diligence and competence we expect of trustees, objectively measured by reference to what a “reasonable” or “prudent” person would do in like circumstances, and informed by industry norms and practices. As I previously wrote here in the context of trustee investment decisions, the duty of … Continue Reading

3d DCA: Does an adjudication of paternity = “adoption” for purposes of Florida’s pretermitted child statute?

Posted in Will Construction Litigation
Estate of Maher v. Iglikova, — So.3d —-, 2014 WL 1386660 (Fla. 3d DCA April 09, 2014) In 2004 James Maher’s small twin-engine plane went missing somewhere over the jungle between Honduras and Costa Rica (see here). His body was never found. Maher executed a valid will in 2001. Under F.S. 733.209 Maher’s heirs are permitted to petition … Continue Reading

Fla.S.Ct: DIY estate planning + technical execution defects = partial intestacy contrary to grantor’s “true” intent. Should we adopt the Uniform Probate Code’s “harmless error” rule for technical execution defects?

Posted in Will and Trust Contests
Aldrich v. Basile, — So.3d —-, 2014 WL 1240073 (Fla. March 27, 2014) If you make your living drafting wills or enforcing them in court, here’s what this case should NOT be about for you: inflicting post-mortem punishment on a woman for engaging in DIY estate planning (which was the slant reflected in this short … Continue Reading

2d DCA: When can a second wife subpoena confidential business records of a closely-held corporation founded by her deceased husband?

Posted in Spousal Elective Share Claims
McDonald v. Johnson, — So.3d —-, 2012 WL 246468 (Fla. 2d DCA January 27, 2012) What divorce attorneys do and what trusts-and-estates lawyers do overlaps all the time. Often that overlap occurs at the planning stage, when working together on drafting a pre-nuptuial or marital settlement agreement, but not always. Sometimes it happens in the … Continue Reading

1st DCA: If my will gives everything to one of my three sons to divide among my heirs as he sees fit, can he keep it all for himself?

Posted in Will Construction Litigation
Cody v. Cody, — So.3d —-, 2013 WL 6171299 (Fla. 1st DCA November 26, 2013) The wills at the center of this case were ticking time bombs from the moment Mr. and Mrs. Martin signed them in 2007. Mrs. Martin died later that same year. Mr. Martin died in 2010. When both parents passed away, their … Continue Reading

What can Florida lawyers learn from the “Newell v. Johns Hopkins University” charitable donation case?

Posted in Gifts and Charities Litigation
Newell v. Johns Hopkins University, 215 Md. 217, 79 A.3d 1009 (Md. App. November 21, 2013) Tim Newell, the nephew of the late Elizabeth Banks,  sued Johns Hopkins University in 2011, charging that Banks conveyed her family’s 138-acre dairy farm to Hopkins in 1989 for $5 million — far below its market value — with the understanding … Continue Reading

Three Florida firms learn the hard way: asset protection planning = DANGER FOR LAWYERS

Posted in Creditors' Claims, Musings on the Practice of Law
Asset protection planning’s a high risk practice area that many estate planners “dabble” in. In my opinion, that’s a big mistake. Why? Because this kind of work is a minefield of potential liability for lawyers, no matter how careful you think you are or how lawful your planning advice may be. But the money’s good, right? … Continue Reading

2d DCA: Does F.S. 56.29 give a Florida court personal jurisdiction over a Kentucky trustee absent a basis for personal jurisdiction under Florida’s long-arm statute?

Posted in Creditors' Claims, Practice & Procedure
Jarboe Family and Friends Irrevocable Living Trust v. Spielman, — So.3d —-, 2014 WL 185215 (Fla. 2d DCA January 17, 2014) This case involved a Florida judgment creditor trying to sue a Kentucky trustee/trust in Florida. The Kentucky trustee moved to dismiss on jurisdictional grounds, tracking the procedures for contesting personal jurisdiction laid out by … Continue Reading

4th DCA: Does Rule 1.525′s 30-day deadline apply in adversary probate proceedings?

Posted in Compensation Disputes, Practice & Procedure
Stone v. Stone, — So.3d —-, 2014 WL 537547 (Fla. 4th DCA February 12, 2014) If, when and how Civ. Pro. Rule 1.525, the rule setting a 30-day post-judgment deadline for filing attorney’s fee motions in civil litigation, applies to contested probate, guardianship and trust proceedings, is an important question. The last thing any lawyer … Continue Reading

3d DCA: Does judge’s independent investigation of facts in guardianship proceeding = disqualification?

Posted in Contested Guardianship Proceedings, Ethics & Malpractice Claims
In re Guardianship of O.A.M., — So.3d —-, 2013 WL 5927613 (Fla. 3d DCA November 06, 2013) Guardianship proceedings involving minors can be especially challenging for all involved . . . including your judge. Here’s the main problem: unlike most civil cases, in guardianship proceedings the judge plays a dual role: he or she serves … Continue Reading

1st DCA: What’s the test for “competency” when it comes to executing a preneed guardianship designation; and when’s a probate judge authorized to disregard an otherwise valid designation?

Posted in Contested Guardianship Proceedings
Koshenina v. Buvens, — So.3d —-, 2014 WL 304889 (1st DCA January 29, 2014) As the Baby Boomer generation passes age 65, the number of people living with cognitive impairment is expected to jump dramatically. Based on US Census data, researchers estimate that in 2000, 4.5 million Americans aged 65 years or older had some … Continue Reading

Miami attorney Patrick Lannon on undue influence claims challenging inter vivos (lifetime) gifts, and how we (and our courts) can do a better job of connecting the dots

Posted in Gifts and Charities Litigation, Trust and Estates Litigation In the News
Most inheritance litigation involving claims of undue influence arise in the context of a will or trust contest, and most of those cases revolve around whether the primary beneficiary actively procured the contested instrument. Active procurement can be difficult to prove (or disprove) because your single most important witness, the grantor, is dead, which means we have … Continue Reading

1st DCA: Can the “equitable exception” doctrine salvage a will’s non-existent exercise of a power of appointment?

Posted in Will Construction Litigation
Cessac v. Stevens, — So.3d —-, 2013 WL 6097315 (Fla. 1st DCA November 20, 2013) The grant of a power of appointment to a trust beneficiary offers flexibility in an estate plan that’s virtually impossible to achieve any other way. For example, arming a beneficiary with a testamentary power of appointment allows that beneficiary to … Continue Reading

2d DCA: Alimony claim vs. Florida spendthrift/discretionary trust: who wins?

Posted in Marital Agreements and Spousal Rights, Will and Trust Contests
Berlinger v. Casselberry, — So.3d —-, 2013 WL 6212023 (Fla. 2d DCA November 27, 2013) If you’re a trusts and estates lawyer, you can’t ignore this case. In the absence of legislative changes or a conflicting ruling out of another Florida DCA, Berlinger is now the law of the land. Which means if you’re involved in … Continue Reading

4th DCA decides latest Perelman family battle; sends matriarch Ruth Perelman’s contested estate back to Pennsylvania for further litigation

Posted in Practice & Procedure
Perelman v. Estate of Perelman, — So.3d —-, 2013 WL 5807358 (Fla. 4th DCA October 30, 2013) Most families squabble, and when the stakes are high enough, some even sue each other . . . but few do it quite like the Perelmans. The latest twist in this ongoing family saga played itself out in Florida, where … Continue Reading

11th Cir: For federal diversity jurisdiction, whose citizenship counts: the PR’s or the decedent’s?

Posted in Practice & Procedure
Leyva v. Daniels, — Fed.Appx. —-, 2013 WL 5313600 (11th Cir. September 24, 2013) As long as our state probate courts remain underfunded and overworked (see here), there’s going to be an incentive to move inheritance cases into the relatively better funded and better staffed federal court system. As explained here, to get into federal court … Continue Reading

4th DCA: When can a Florida probate judge say “no” to your choice of a non-Florida attorney to represent you in a contested Florida probate proceeding?

Posted in Practice & Procedure
Kelley v. Kelley, — So.3d —-, 2013 WL 5729793 (Fla. 4th DCA October 23, 2013)  It’s not unusual for family members and other beneficiaries (for example, charities) of Florida estates to reside in multiple other states (or even internationally) and have preexisting relationships with lawyers in their home jurisdictions they want to represent them in the … Continue Reading