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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Can you sue a Florida trust protector for breach of fiduciary duty?

Posted in Practice & Procedure, Will and Trust Contests
Over the last few years there’s been a trend towards wider use of trust protectors in domestic trusts (see here for why), and last year’s 4th DCA opinion in the Minassian case (which I wrote about here) may go a long way towards accelerating that trend — especially in Florida. As trust-protector clauses get incorporated… Continue Reading

5th DCA: Can a trial judge assess over $85,000 in attorneys fees against beneficiaries for suing a trustee who committed “numerous breaches” of fiduciary duty?

Posted in Compensation Disputes, Will and Trust Contests
Harrell v. Badger, — So.3d —-, 2015 WL 3631639 (Fla. 5th DCA June 12, 2015) The default rule in most civil trials is that win or lose, each side pays its own attorneys fees. Known as the “American rule,” it’s something we all learn about in law school and assume applies most of the time. That assumption can… Continue Reading

4th DCA says NO to “legal gymnastics” aimed at getting around Florida’s post-divorce automatic will-revocation statute

Posted in Marital Agreements and Spousal Rights
Carroll v. Israelson, — So.3d —-, 2015 WL 3999486 (Fla. 4th DCA July 01, 2015) In 1951 Florida enacted a statute automatically cutting divorced spouses out of each others’ wills (currently at F.S. 732.507(2)). In 1989 Florida extended this rule to revocable trusts (see F.S. 736.1105). And in 2012 extended it yet again to non-probate transfers such… Continue Reading

4th DCA: Can a ward sue the attorney for his former court-appointed guardian for malpractice?

Posted in Contested Guardianship Proceedings, Ethics & Malpractice Claims
Saadeh v. Connors, — So.3d —-, 2015 WL 3875682 (Fla. 4th DCA June 24, 2015)  The general trend in Florida (especially in the trusts and estates context) is that a third-party beneficiary of your legal services can sue you for malpractice — and it doesn’t matter that the third party was never your client and had zero privity of… Continue Reading

Bkrtcy. M.D.Fla.: Can winning a “defalcation” ruling in a bankruptcy proceeding against your former probate lawyer end up immunizing his insurance carrier from liability?

Posted in Compensation Disputes, Ethics & Malpractice Claims, Practice & Procedure
In re West, Slip Copy, 2015 WL 2445315 (Bkrtcy. M.D.Fla., May 20, 2015) Complex estate litigation usually doesn’t get resolved in a single winner-take-all trial. These cases usually get played out in multiple “mini” trials (sometimes before the same judge, sometimes not) turning on an evolving set of contingencies that no one could have predicted in… Continue Reading

California court invalidates power of appointment; disinherited heir gets 1/3 of $55M trust

Posted in Will and Trust Contests, Will Construction Litigation
Sefton v. Sefton, — Cal.Rptr.3d —-, 2015 WL 1870302 (Cal.App. 4 Dist. April 24, 2015) Assume you have a case involving a $55 million trust created under “Grandfather’s” Will, that provides for a life-time trust for his son (“Father”), containing the following testamentary power of appointment (“POA”): [T]hree quarters (3/4) [of the Trust estate] shall be… Continue Reading

2d DCA: Is Florida’s trust-reformation statute limited to only fixing “simple scrivener’s errors”?

Posted in Practice & Procedure, Will and Trust Contests, Will Construction Litigation
Megiel-Rollo v. Megiel, — So.3d —-, 2015 WL 1740365 (Fla. 2d DCA April 17, 2015) When it comes to wills and trusts, drafting mistakes come in all shapes and sizes. If the document’s written in a sloppy way that’s open to more than one reasonable interpretation, it’s “ambiguous” and there’s a two-step process for litigating that… Continue Reading

Will a faith-based arbitration clause disqualify your trust for tax purposes?

Posted in Practice & Procedure, Tax Cases
Mikel v. Comm’r, T.C. Memo. 2015-64, 2015 WL 1518063 (U.S.Tax Ct. April 6, 2015) We aren’t doing our jobs as estate planners if we don’t anticipate — and plan accordingly for — the structural limitations inherent to an overworked and underfunded state court system that asks our judges to juggle thousands of cases at a time. (In Miami-Dade – on… Continue Reading

Must read for Florida guardianship lawyers: Sarasota Herald-Tribune’s special investigative series: “Elder guardianship: A well-oiled machine”

Posted in Contested Guardianship Proceedings, Trust and Estates Litigation In the News
A special multi-part investigative series published by the Sarasota Herald-Tribune entitled Elder guardianship: A well-oiled machine, reported that while Florida has an efficient system of identifying and caring for fragile elders, “tapping their assets is a growth business.” Here’s an excerpt from the Herald-Tribune report: The idea behind guardianship is to protect older citizens. But… Continue Reading

5th DCA: Can a woman invalidate her own Texas adoption to win a Florida estate case?

Posted in Practice & Procedure
Kemp & Associates, Inc. v. Chisholm, — So.3d —-, 2015 WL 477856 (Fla. 5th DCA February 06, 2015) Inheritance disputes tend to be deeply personal affairs, often involving challenges to a person’s core identity or “status” as a family member. Past examples include cases turning on a person’s contested status as a lineal descendant (e.g.,… Continue Reading

4th DCA: Does a surviving widow have “standing” to assert her predeceased husband’s homestead rights?

Posted in Homestead Litigation, Marital Agreements and Spousal Rights
Lyons v. Lyons, — So.3d —-, 2014 WL 5460621 (Fla. 4th DCA October 29, 2014) This is one of two cases published in 2014 involving litigated homestead rights and property deeded to a qualified personal residence trust (QPRT). (The other was Stone v. Stone, which I wrote about here.) Prior to 2014 it had been… Continue Reading

Florida needs to adopt the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act

Posted in Contested Guardianship Proceedings, Trust and Estates Litigation In the News
For those of you who do much guardianship work, you’ll be interested in a recently-published legislative summary from the American Bar Association’s Commission on Law and Aging. Entitled STATE ADULT GUARDIANSHIP LEGISLATION: DIRECTIONS OF REFORM – 2014, the report does a good job of highlighting the strengths and weaknesses of Florida’s guardianship laws (F.S. Ch. 744) by… Continue Reading

4th DCA: Should post-nuptial waivers of homestead rights be assumed anytime spouses sign a joint deed?

Posted in Homestead Litigation, Marital Agreements and Spousal Rights
Stone v. Stone, — So.3d —-, 2014 WL 5834826 (Fla. 4th DCA November 12, 2014) Under Florida law a surviving spouse’s testamentary rights in the couple’s marital homestead residence are spelled out in Art. X, § 4(c) of the Florida Constitution and F.S. 732.4015(1). Spouses are free to contractually waive their homestead rights, and often do for… Continue Reading

4th DCA: Contracts vs. Testamentary Instruments: If you promise property one way by Contract and another way in your Revocable Trust, who wins?

Posted in Practice & Procedure
Blechman v. Estate of Blechman, — So.3d —-, 2015 WL 1500021 (Fla. 4th DCA April 1, 2015) A revocable trust is a form of testamentary instrument that’s used as a will substitute, and it’s treated as such in this case, which involves a family-owned LLC. The LLC was half owned by Bertram Blechman, who died in 2011. Under… Continue Reading

3d DCA: Can you sue a Spanish PR personally for showing up in a Miami courtroom in his representative capacity?

Posted in Practice & Procedure
Juega v. Davidson, — So.3d —-, 2012 WL 6601969 (Fla. 3d DCA December 19, 2012) Florida is a perennial favorite for international home buyers and Snow Birds migrating from the Northeast to the South. Which means a lot of people own property in Florida, but reside and work in another state or country, frequently owning… Continue Reading

4th DCA: Can “trust protectors” be used to privatize Florida trust-construction disputes?

Posted in Will and Trust Contests, Will Construction Litigation
Minassian v. Rachins, — So.3d —-, 2014 WL 6775269 (Fla. 4th DCA December 03, 2014) In what could be a ground breaking decision, for the very first time we now have a Florida appellate court explicitly sanctioning the use of trust protectors in a domestic trust proceeding. Historically, trust protectors were a standard feature in… Continue Reading

4th DCA: Ignorance of the law is no excuse. Just because you don’t know you’re legally entitled to trust accountings doesn’t mean you get sit on your hands for years before suing your trustee for never accounting to you.

Posted in Practice & Procedure
Corya v. Sanders, — So.3d —-, 2014 WL 5617045 (Fla. 4th DCA November 05, 2014) We all know that, generally speaking, ignorance of the law is no excuse. But does this ancient maxim apply to Florida trust-accounting cases as well? Yes! According to the 4th DCA, just because you don’t know you’re legally entitled to trust accountings… Continue Reading

S.D.Fla.: Can you prosecute an “unjust enrichment” claim in a case involving contested life insurance proceeds?

Posted in Practice & Procedure
Kowalski v. Jackson Nat. Life Ins. Co., 2013 WL 5954380 (S.D.Fla. November 07, 2013) If you’re a trusts and estates lawyer, a larger and larger share of your practice is going to have little — if anything — to do with our probate code. Why? Think: non-probate revolution. In today’s world most inherited wealth is… Continue Reading

M.D.Fla.: Can you be found guilty of “defalcation” for billing a client in accordance with Florida’s statutory fee schedule?

Posted in Compensation Disputes, Ethics & Malpractice Claims
West v. Chrisman, Slip Copy, 2014 WL 4683182 (M.D.Fla. September 19, 2014) If there’s anyone out there that still believes F.S. 733.6171 (the probate code’s attorney’s fee statute) or its trust-code equivalent (F.S. 736.1007) establishes a fee that’s “set” or otherwise “blessed” by Florida law, this case is going to be a rude awakening. Not only did… Continue Reading

2d DCA: Surviving spouse’s Homestead Rights vs. ex-spouse’s contractual rights under Marital Settlement Agreement. Who wins?

Posted in Homestead Litigation, Marital Agreements and Spousal Rights
Friscia v. Friscia, — So.3d —-, 2014 WL 4212689 (Fla. 2d DCA August 27, 2014) It’s not unusual for marital settlement agreements (“MSAs”) to pop up as major players in contested probate proceedings (see here, here, here), what is unusual — which makes this case a “must read” for probate lawyers — is how the MSA’s… Continue Reading

Interview with a Probate Lawyer: Frank T. Adams

Posted in Interview with a Probate Lawyer, Marital Agreements and Spousal Rights
Frank T. Adams of Dunwody White & Landon, P.A. in Coral Gables, Florida, was on the winning side of Kelley v. Kelley, an interesting 4th DCA opinion I wrote about here involving a collateral attack on a “quickie” Nevada divorce in connection with a Florida inheritance dispute. I invited Frank to share some of the lessons he… Continue Reading

4th DCA: If a probate creditor files his “independent action” in the wrong division of the circuit court, should the action be dismissed or transferred?

Posted in Creditors' Claims
West v. West, — So.3d —-, 2013 WL 5989234 (Fla. 4th DCA November 13, 2013) One of the decedent’s two sons claimed his father owed him over $50,000 when he passed away. To collect on this debt son filed a creditor claim against his father’s estate. Other brother objected, which triggered the obligation under F.S. 733.705 to… Continue Reading

4th DCA: What’s it take to collaterally attack a “quickie” Nevada divorce as part of a Florida inheritance dispute?

Posted in Marital Agreements and Spousal Rights, Practice & Procedure
Kelley v. Kelley, — So.3d —-, 2014 WL 4427275 (Fla. 4th DCA September 10, 2014) In this case a disinherited son contested his father’s estate on the grounds that his father wasn’t “legally” married at the time of his death, thus excluding his surviving spouse as a valid beneficiary of a multigenerational family trust. This… Continue Reading