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: Will and Trust Contests

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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 [&hellip… 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 [&hellip… 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 [&hellip… 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 [&hellip… 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 [&hellip… 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 [&hellip… 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 [&hellip… 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 [&hellip… 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 [&hellip… 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 [&hellip… 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 [&hellip… 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 [&hellip… 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 [&hellip… Continue Reading

3d DCA says NO to adoption of 42 year old girlfriend; ends ploy to raid 1/3 share of $300 million trust fund

Posted in Will and Trust Contests
Goodman v. Goodman, — So.3d —-, 2013 WL 1222944 (Fla. 3d DCA March 27, 2013) In a sharply worded opinion the 3d DCA struck down an order by Miami trial-court Judge Antonio Marin allowing embattled Palm Beach polo tycoon John B. Goodman to adopt his 42-year old girlfriend. The apparent intent behind the adoption was [&hellip… Continue Reading

U.S. Supreme Court to decide when a breach-of-trust judgment against a former trustee is dischargeable in bankruptcy

Posted in Will and Trust Contests
Bullock v. BankChampaign, N.A., 133 S.Ct. 526 (U.S. October 29, 2012) [docket] Trusts and estates cases rarely make it to the U.S. Supreme Court, so when they do it’s big news [e.g., see here]. This time around the Supreme Court’s granted cert in a case arising out of our very own 11th Circuit in Bullock v. [&hellip… Continue Reading

5th DCA: If your witness can’t testify to the “content” of the lost will, do you still have a case?

Posted in Will and Trust Contests
Brennan v. Honsberger, — So.3d —-, 2012 WL 5969617 (Fla. 5th DCA November 30, 2012)  This is the second time this case has been up on appeal. The first time around the issue was whether live witness testimony is required as a matter of law to prove a lost will or whether affidavits alone will do if your [&hellip… Continue Reading

4th DCA: Can filing a time-barred will contest get you (and your lawyer) sanctioned?

Posted in Compensation Disputes, Will and Trust Contests
Shuck v. Smalls, — So.3d —-, 2012 WL 6027820 (Fla. 4th DCA December 05, 2012) In civil litigation you usually have years to file your complaint: most statute of limitations periods fall within the 2-6 year range. Not surprisingly, most civil litigators assume the same rules apply to probate litigation. Big mistake! For example, under F.S. [&hellip… Continue Reading

3d DCA: Can a trustee be personally liable for an opposing party’s legal fees in a breach of trust lawsuit?

Posted in Will and Trust Contests
Jacobson v. Sklaire, — So.3d —-, 2012 WL 1414447 (Fla. 3d DCA April 25, 2012) Will I personally have to pay the other side’s legal fees if I lose this lawsuit? That’s a question we usually don’t have to grapple with because Florida, like the rest of the U.S., follows the "American rule": win or lose, all sides pay their own legal fees unless there’s [&hellip… Continue Reading

4th DCA: Can you challenge the validity of a revocable trust without also contesting the pour-over will?

Posted in Will and Trust Contests
Pasquale v. Loving, — So.3d —- 2012 WL 933030 (Fla. 4th DCA March 21, 2012) The popularity of revocable trusts and pour-over wills as "package deals" creates interesting strategic choices when challenging their validity; all of which revolve around legitimately exploiting the procedural and substantive differences between probate actions (think will contest) and tort actions (think trust [&hellip… Continue Reading

2d DCA: Are trustees entitled to due process prior to being removed?

Posted in Practice & Procedure, Trustees In Hot Water, Will and Trust Contests
Kountze v. Kountze, — So.3d —-, 2012 WL 3111681 (Fla. 2d DCA August 01, 2012) It says it right in the trust code: trust litigation must be conducted like any other form of civil litigation. F.S. § 736.0201(1). The problem is that many of these cases are litigated before probate judges, who on a day-to-day basis adjudicate [&hellip… Continue Reading

2d DCA: If a probate will contest and a civil trust action involving the same facts are both pending, is the right answer to “abate” one of the cases or “consolidate” them into a single trial?

Posted in Will and Trust Contests
Relinger v. Fox, — So.3d —-, 2011 WL 439428 (Fla. 2d DCA Feb 09, 2011) There are a number of reasons why a case may be abated and proceedings suspended. The court may order abatement because of the death of one of the parties. See here, for example, where a pending action to partition a [&hellip… Continue Reading

3d DCA: Is a Caveator Barred from Contesting a Will when Responses after Formal Notice are Untimely?

Posted in Will and Trust Contests
Rocca v. Boyansky, — So.3d —-, 2012 WL 280752 (Fla. 3d DCA February 01, 2012) When an interested person files a caveat to a will, F.S. § 731.110(3) requires that Formal Notice be given to the caveator, and that such person be given the opportunity to participate in proceedings before a will is admitted or [&hellip… Continue Reading