Florida Probate & Trust Litigation Blog

Florida Probate & Trust Litigation Blog

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

Category Archives: Will and Trust Contests

Subscribe to Will and Trust Contests RSS Feed

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… 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

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

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

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

Posted in Settling, Mediating & Arbitrating Inheritance Cases, 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

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

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, Settling, Mediating & Arbitrating Inheritance Cases, Will and Trust Contests
Gren v. Gren, 133 So.3d 1066 (Fla. 4th DCA January 8, 2014) Why any estate planner would in good conscience 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

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

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

1st DCA: Can “buyer’s remorse” get you out of a mediated settlement agreement?

Posted in Settling, Mediating & Arbitrating Inheritance Cases, Will and Trust Contests
Pierce v. Pierce, — So.3d —-, 2013 WL 6438955 (Fla. 1st DCA December 10, 2013) Most inheritance cases settle, and most settlement agreements are never contested. But when they are, it’s good to know what the rules are. For example, if one side is trying to get out of her deal because she claims it… 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 family-law or 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… 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

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

Posted in Marital Agreements and Spousal Rights, Spousal Elective Share Claims, 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

2013 legislative news: 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… 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

1st DCA: Does a dutiful adult child caring for an elderly parent = undue influence?

Posted in Gifts and Charities Litigation, Will and Trust Contests
Estate of Kester v. Rocco, — So.3d —-, 2013 WL 3155849 (Fla. 1st DCA June 24, 2013) Most parents want to treat their children fairly in their estate planning, but fair doesn’t necessarily mean equal. We all know there are perfectly valid reasons for why a parent might opt to NOT divide the family pie in… Continue Reading

4th DCA: Is adult adoption for inheritance purposes against Florida public policy?

Posted in Will and Trust Contests
Dennis v. Kline, — So.3d —-, 2013 WL 3014115 (Fla. 4th DCA June 19, 2013) The adult adoption order at the center of the 3d DCA’s recently published opinion in the Goodman v. Goodman case wasn’t voided on substantive grounds, it was set aside for procedural reasons: the adopting party’s intentional lack of notice to other trust beneficiaries having… Continue Reading