Florida Probate & Trust Litigation Blog

Florida Probate & Trust Litigation Blog

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

Text Size: A A A

Category Archives: New Probate & Trust Cases

Subscribe to New Probate & Trust Cases RSS Feed

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

M.D.Fla: Can a corporate trustee caught in middle of on-going divorce litigation sue one of the ex-spouses for unjust enrichment?

Posted in Marital Agreements and Spousal Rights, Practice & Procedure
Berlinger v. Wells Fargo, N.A., Slip Copy, 2014 WL 4071667 (M.D.Fla. August 18, 2014) This isn’t the first time the trusts at the center of this on-going divorce battle have made it into a published court ruling. I previously wrote about these trusts here, in the context of a controversial appellate ruling by the 2d DCA … Continue Reading

When to “Decant” a Trust. It’s getting easier to tinker with irrevocable trusts. Here’s how it works.

Posted in Practice & Procedure, Probate & Guardianship Statutes
If you’re working with an irrevocable trust that needs fixing for some reason and the trust agreement includes an “absolute” power to invade trust principal, your first thought should be to simply re-write the trust by using Florida’s “decanting” statute (F.S. 736.04117). Decanting lets trustees re-write irrevocable trust agreements by figuratively pouring the assets from … Continue Reading

Probate judge to personal representatives: “there is a higher power that [you're] accountable to and, short of God, that’s me.” 4th DCA says not so fast.

Posted in Compensation Disputes, Creditors' Claims, Practice & Procedure
Vazza v. Estate of Vazza, — So.3d —-, 2014 WL 4082864 (Fla. 4th DCA August 20, 2014) On average Broward County’s probate judges each took on 2,848 new cases in FY 2012-13 (see here). The unavoidable consequence of that kind of case load is what’s been referred to as the “cold judge” factor; a term coined … Continue Reading

Florida must recognize gay widower’s Delaware marriage for purposes of appointing the non-resident personal representative of his ancillary estate, Palm Beach probate judge rules

Posted in Marital Agreements and Spousal Rights, Removal of Personal Representatives and Surcharge
Estate of Bangor, Case No. 502014CP001857 (Fla. 15th Cir, Palm Beach, August 5, 2014) Florida law says you can’t appoint a non-resident to serve as personal representative of your estate unless that person’s your “spouse” or otherwise related to you. (See F.S. 733.304). This rule’s always struck me as an arbitrary trap for the unwary … Continue Reading

3d DCA: Is a probate judge’s “jurisdictional” authority limited to only probate-related matters?

Posted in Practice & Procedure
Kates v. Lifter, — So.3d —-, 2012 WL 832802 (Fla. 3d DCA March 14, 2012) Our state circuit courts are usually split up into specialty divisions, as authorized by Article V, § 7, of the Florida Constitution. For example, my home circuit court in Miami-Dade, the 11th, has six specialty divisions: Circuit Civil, Circuit Criminal, Family, … Continue Reading

5th DCA notes conflict with 4th DCA while siding with 1st and 2nd DCA’s on when “reasonably ascertainable” creditor’s filing deadline begins to run; issue to be decided by Florida Supreme Court

Posted in Creditors' Claims
Souder v. Malone, — So.3d —-, 2014 WL 3756356 (Fla. 5th DCA August 01, 2014) 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 my deadline for litigating whether or not I’m a reasonably ascertainable creditor? First the 1st DCA in 2009, and … Continue Reading

5th DCA: Can a probate judge admit a challenged will to probate before the will contest is adjudicated?

Posted in Will and Trust Contests
Platt v. Osteen, — So.3d —-, 2012 WL 6629650 (Fla. 5th DCA December 21, 2012) The outcome of this inheritance dispute turned on two questions: first, was the decedent’s will valid, and second, did the party challenging its validity have a stake in the outcome as a “virtually adopted” intestate heir (see here, here, here for more … Continue Reading

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. (Click here for an excellent chart visually summarizing all of these provisions). That being said, our Trust Code doesn’t legislate on every … 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 Marital Agreements and Spousal Rights, 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 Marital Agreements and Spousal Rights, 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