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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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
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

S.D.Fla.: Is an “estate” a proper party in civil litigation?

Posted in Practice & Procedure
Garcia v. Diamond Marine Ltd., 2013 WL 6086916 (S.D.Fla. November 19, 2013) You’ll often hear lawyers speak in terms of suing “the estate,” or transferring property to “the estate,” or collecting a bill that’s payable by “the estate.” This kind of loose talk usually doesn’t matter, but sometimes it does. To be clear, under Florida … Continue Reading

Why Fiduciary Law Is Equitable

Posted in White Papers - RPPTL Comm, Will and Trust Contests
Fiduciary relationships and the duties and liabilities that spring from those relationships arise in all sorts of contexts. The classic examples are “status” based, such as court-appointed personal representatives (PR’s) and trustees appointed to serve as such under written trust agreements. But limiting your perspective to only self-labled fiduciaries isn’t very useful in inheritance disputes involving … Continue Reading

4th DCA splits with 1st and 2nd DCA’s on when “reasonably ascertainable” creditor’s filing deadline begins to run

Posted in Creditors' Claims
Golden v. Jones, — So.3d —-, 2013 WL 5810360 (Fla. 4th DCA October 30, 2013) So here’s the question that’s been roiling certain quarters of our probate bar for the last few years: Assuming I file my creditor claim before the 2-year post-death deadline set by F.S. 733.710 (Florida’s “statute of repose” for probate creditor claims), what’s … Continue Reading

5th DCA: Can $5 million gift to surviving spouse be conditioned on a prior waiver of her elective-share rights?

Posted in Will and Trust Contests
Dinkins v. Dinkins, — So.3d —-, 2013 WL 3834371 (Fla. 5th DCA July 26, 2013) In the right circumstances, no-contest or in terrorem clauses can be effective tools to ward off wasteful inheritance litigation. Here’s the problem: these clauses are unenforceable in Florida for public policy reasons, as explained by the 5th DCA in the … Continue Reading

2d DCA: If a Colorado court accepts a Colorado decedent’s unwitnessed, self-written (holographic) will as valid, is the will valid in Florida?

Posted in Practice & Procedure, Will Construction Litigation
Lee v. Estate of Payne, — So.3d —-, 2013 WL 5225200 (Fla. 2d DCA September 18, 2013) Under F.S. 732.502(2), oral (nuncupative) wills and unwitnessed self-written (holographic) wills aren’t valid in Florida under any circumstances, no matter how strong the evidence is that they’re otherwise legitimate. This is basic stuff for Florida probate lawyers. What may … Continue Reading

New legislation codifies (expands?) FL long-arm jurisdiction over non-residents in trust litigation

Posted in Probate & Guardianship Statutes, Will and Trust Contests
According to census data, Florida is the largest recipient of state-to-state migration in the U.S. Internationally, Florida remains the top state for international home buyers. So it shouldn’t come as a surprise to anyone that multi-jurisdictional estates are a growing part our practice here in Florida. The jurisdictional issues these cases raise in probate and trust cases … Continue Reading

4th/5th DCA: Promises, promises . . . Are oral agreements enforceable in inheritance disputes?

Posted in Creditors' Claims, Practice & Procedure
In the trusts and estates world, if it’s not in writing it usually doesn’t count. We all know wills have to be in writing, F.S. 732.502, and the same goes for most trusts, F.S. 736.0403(2). And most of us know waivers of spousal rights also have to be in writing. F.S. 732.702. But what if you’re one … Continue Reading

2d DCA: What’s the “renunciation” rule and when does it apply to will and trust contests?

Posted in Practice & Procedure, Will and Trust Contests
Fintak v. Fintak, — So.3d —-, 2013 WL 4483103 (Fla. 2d DCA August 23, 2013) There’s nothing wrong with hedging your bets in litigation by asserting alternate — or even inconsistent — arguments. In fact, under our rules of civil procedure it’s explicitly authorized. See Fla. R. Civ. P. 1.110(g) (“A party may … state as … Continue Reading