Florida Probate & Trust Litigation Blog

Florida Probate & Trust Litigation Blog

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

Category Archives: New Probate & Trust Cases

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Trust protectors; they’re like trustees, but not quite. So can they get sued?

Posted in Trust and Estates Litigation In the News, Trustees In Hot Water, Will and Trust Contests
It used to be so simple. Back in the day trust lawyers had to contend with only three possible players: the settlor, the trustee, or the beneficiary. Today that trio’s often joined by a new creature we’re still not exactly sure what to make of: a trust protector. Over the last few years there’s been a… Continue Reading

4th DCA: Can a probate judge use his “equitable powers” to override our Probate Code?

Posted in Creditors' Claims, Practice & Procedure
Oreal v. Steven Kwartin, P.A., — So.3d —-, 2016 WL 1239756 (Fla. 4th DCA March 30, 2016) Having your case decided against you because a well-intentioned judge chose not to apply some provision of our Probate Code for “equitable” reasons is to stare into the abyss. Why? Because there’s no certainty if we can’t rely on our statutes… Continue Reading

3d DCA: Can you sue hostile parties for fraud if they lie to you during settlement negotiations?

Posted in Practice & Procedure, Settling, Mediating & Arbitrating Inheritance Cases
Moriber v. Dreiling, — So.3d —-, 2016 WL 145968 (Fla. 3d DCA January 13, 2016) Lawyers love to brag about their court wins, not so much about their prowess as contract drafters. But the reality is that the vast majority of inheritance cases settle, which means in most instances “who gets what” is going to be… Continue Reading

4th DCA: Can a surviving spouse’s $12.5 million “elective share” be reduced to pay attorney’s fees?

Posted in Marital Agreements and Spousal Rights, Spousal Elective Share Claims
Blackburn v. Boulis, — So.3d —-, 2016 WL 231405 (Fla. 4th DCA January 20, 2016)  Gus Boulis was a spectacularly successful self-made millionaire with a sixth grade education whose life story was as colorful as it was improbable. And it all came to an end in 2001 when he was gunned down gangland style. The “hit”… Continue Reading

4th DCA: Are you required — as a matter of law — to always add a donor’s personal representative to an inter vivos gift case?

Posted in Practice & Procedure
Parker v. Parker, — So.3d —-, 2016 WL 404636 (Fla. 4th DCA February 03, 2016) When most lawyers think “inheritance” litigation, they assume you’re talking about some kind of will contest. In reality, inheritance disputes often have nothing to do with transfers made at death, and everything to do with gifts made while a senior family… Continue Reading

2d DCA says YES to $24.6 million in trustee fees; NO to hourly billing

Posted in Compensation Disputes
Robert Rauschenberg Foundation v. Grutman, — So.3d —-, 2016 WL 56456 (Fla. 2d DCA January 06, 2016) We can all agree hourly billing is a terrible way to do business. Unfortunately, Florida courts are required— as a matter of law — to evaluate contested attorney’s fees using the “lodestar” method (which is all about hourly billing,… Continue Reading

4th DCA: When does the “renunciation” rule NOT apply in trust litigation?

Posted in Will and Trust Contests
Gossett v. Gossett, — So.3d —-, 2015 WL 8947627 (Fla. 4th DCA December 16, 2015) As a general rule, a trust litigant can’t have it both ways: he can’t simultaneously benefit from and contest the validity of the same trust agreement. Which means that if a beneficiary wants to sue to invalidate a trust agreement, he first has to renounce his interest in the… Continue Reading

4th DCA: The sins of our fathers. Does Florida’s “slayer rule” also disinherit a killer’s descendants?

Posted in Will and Trust Contests
Fiel v. Hoffman, — So.3d —-, 2015 WL 4549604 (Fla. 4th DCA July 29, 2015) This appeal is the latest chapter in the battle over the fortune of Fontainebleau heir Ben Novack Jr. Novack was murdered in 2009. In 2012, his estranged wife, Narcy Novack, was sentenced to life in prison for paying hitmen to  kill… Continue Reading

1st DCA: Can you challenge “joint” accounts and “POD” accounts on undue influence grounds in nonprobate inheritance cases?

Posted in Will and Trust Contests
In today’s world the vast majority of inherited wealth gets transferred from one generation to the next by nonprobate “will substitutes” that are not subject to probate, are not controlled by a person’s will, and are not governed by our probate code. Known as the nonprobate revolution, it’s a trend that’s been accelerating for decades. If you’re a trusts and… Continue Reading

2d DCA: What’s the “dependent relative revocation” doctrine and why should trusts and estates lawyers care?

Posted in Dependent Relative Revocation Doctrine
In re Estate of Murphy, — So.3d —-, 2015 WL 6777216 (Fla. 2d DCA November 6, 2015)  This case has it all. It’s been in the news for years (see here), resulted in a prominent lawyer’s tragic fall from grace and eventual disbarment (see here), was at least partially responsible for new legislation fundamentally changing Florida… Continue Reading

Fla/3d DCA: What’s a “reasonably ascertainable” probate creditor and why should you care?

Posted in Creditors' Claims
Golden v. Jones, — So.3d —-, 2015 WL 5727788 (Fla. October 1, 2015) A cause of action against a probate estate is private property that’s protected by the Fourteenth Amendment’s due process clause. Which means it can’t be taken away from you in a probate proceeding without notice. But what we mean by “notice” depends on… Continue Reading

2015 legislative news: Florida overhauls its elder guardianship system

Posted in Contested Guardianship Proceedings, Probate & Guardianship Statutes
Most of the 2015 legislative changes to our Probate and Trust Codes were rolled into House Bill 343, which I reported on here. This blog post is all about this year’s overhaul of our adult guardianship system, which was spearheaded by Rep. Kathleen Passidomo, R-Naples, and advocated for by AARP Florida, among others. House Bill 5 was the legislative… Continue Reading

4th DCA: When does a court lack “procedural jurisdiction” to appoint a guardian?

Posted in Contested Guardianship Proceedings, Practice & Procedure
Adelman v. Elfenbein, — So.3d —-, 2015 WL 5026178 (Fla. 4th DCA August 26, 2015) Florida’s elder guardianship system has gotten a lot of bad press lately (see here). Some of this criticism is unfair, but not all of it. To the extent we do have a “systemic” problem, in my opinion the root cause is… Continue Reading

4th & 5th DCAs: When does a probate judge have “personal” jurisdiction over a personal representative or trustee?

Posted in Compensation Disputes, Practice & Procedure
Section 731.105 of our Probate Code tells us that all probate matters are “in rem” proceedings. In my last post I wrote about two recent cases testing the outer limits of a probate court’s in rem jurisdictional authority. In this post the focus is on personal (i.e., “in personam”) jurisdiction in contested probate proceedings. A distinctive… Continue Reading

4th DCA: When does a probate judge NOT have jurisdiction over contested property?

Posted in Practice & Procedure, Wrongful Death Claims
In contested probate and trust proceedings, if you hear the word “jurisdiction” being used as part of the litigation, it’s probably coming up in one of two contexts. Either your probate judge didn’t have the legal authority to order that certain property be disposed of in a certain way (i.e., the court lacked “in rem” jurisdiction); or your… Continue Reading

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