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 Construction Litigation

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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 decision explicitly sanctioning the use of trust protectors in a domestic trust proceeding. Historically, trust protectors were a standard feature in … 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

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

1st DCA: Can the “equitable exception” doctrine salvage a will’s non-existent exercise of a power of appointment?

Posted in Will Construction Litigation
Cessac v. Stevens, — So.3d —-, 2013 WL 6097315 (Fla. 1st DCA November 20, 2013) The grant of a power of appointment to a trust beneficiary offers flexibility in an estate plan that’s virtually impossible to achieve any other way. For example, arming a beneficiary with a testamentary power of appointment allows that beneficiary to … Continue Reading

2d DCA: If a Colorado court accepts a Colorado decedent’s unwitnessed, self-written (holographic) will as valid, is the will valid in Florida?

Posted in Practice & Procedure, Will Construction Litigation
Lee v. Estate of Payne, — So.3d —-, 2013 WL 5225200 (Fla. 2d DCA September 18, 2013) Under F.S. 732.502(2), oral (nuncupative) wills and unwitnessed self-written (holographic) wills aren’t valid in Florida under any circumstances, no matter how strong the evidence is that they’re otherwise legitimate. This is basic stuff for Florida probate lawyers. What may … Continue Reading

4th DCA: Miami Care Foundation vs. Miami Children’s Hospital Foundation: drafting error or ambiguity?

Posted in Will Construction Litigation
Miami Children’s Hosp. Found., Inc. v. Estate of Hillman, — So.3d —-, 2012 WL 4795648 (Fla. 4th DCA October 10, 2012) In April 2004 Elaine B. Hillman amended her trust, including the following charitable bequest: TWENTY–FIVE PERCENT (25%) to MIAMI CHILDREN’S HOSPITAL FOUNDATION, CRANIAL/FACIAL FOUNDATION, located at 3000 S.W. 62nd Avenue, Miami, FL 33155, ATT: … Continue Reading

What is Florida’s “nonademption” statute, and why should I care?

Posted in Will Construction Litigation
Melican v. Parker, 289 Ga. 420 (May 31, 2011) There are all sorts of reasons for why probate practice is interesting. Consider, for example, that even the simplest one-page will is governed by a complex body of law, developed over centuries, that appears nowhere within the four corners of the document, yet can have dramatic consequences. In Florida, this body … Continue Reading

3d DCA: Are gifts to in-laws saved by Florida’s anti-lapse statute?

Posted in Will Construction Litigation
Lorenzo v. Medina, — So.3d —-, 2010 WL 4483470 (Fla. 3d DCA Nov 10, 2010) At common law, lapse occurs when the beneficiary or the “devisee” under a will predeceases the testator, invalidating the gift. The gift would instead revert to the residuary estate or be granted under the law of intestate succession. Florida enacted … Continue Reading

In will-construction dispute, 5th DCA says NO to stepmother’s attempted disinheritance of former husband’s children

Posted in Will Construction Litigation
Timmons v. Ingraham, — So.3d —-, 2010 WL 2217637 (Fla. 5th DCA Jun 04, 2010) As reported here by the WSJ, "When it comes to blended families, estate planning can be a special kind of hell." A corollary to that observation: blended families are always at risk for probate litigation. Yes, I said always! This case is an example of … Continue Reading

Does a beneficiary’s death divest his estate of its interest in the assets of a trust that remained to be distributed?

Posted in Will Construction Litigation
Bryan v. Dethlefs, — So.2d —-, 2007 WL 1425499 (Fla. 3d DCA May 16, 2007) In this case the beneficiary of his predeceased grandfather’s trust died before the trust assets were fully distributed to him.  The subsequent litigation revolved around this question: in order to vest under the trust, does the following trust clause require the beneficiary … Continue Reading

How to validly devise a life estate in a tenenats-in-common real property interest

Posted in Will Construction Litigation
Morgan v. Cornell, — So.2d —-, 2006 WL 2987107, 31 Fla. L. Weekly D2632 (Fla. 2d DCA Oct 20, 2006) Estate planning and probate litigation are two sides of the same coin.  The planner needs to understand the underlying substantive property rights being conveyed and how to draft documents that accurately describe what those property … Continue Reading

Ambiguous Drafting Leads to Litigation over Definition of a Decedent’s “Heirs at Law” under Florida Law

Posted in Will Construction Litigation
Karasek v. William J. Lamping Trust, 2005 WL 2086183 (Fla. 4th DCA August 31, 2005) (Trial Court Reversed) Precise drafting is the single most effective barrier against costly probate litigation. What makes estate planning documents especially challenging for attorneys is that the careful drafter needs to consider the very real possibility that the Will or … Continue Reading

Dead Body is Not “Property”

Posted in Will Construction Litigation
Cohen v. Guardianship of Cohen, 30 Fla. L. Weekly D664 (Fla. 4 DCA March 9, 2005) Noting that this case presented an issue of “first impression in Florida,” the 4th DCA affirmed a trial court’s refusal to enforce burial instructions in the decedent’s Will based on clear and convincing evidence presented by his wife of … Continue Reading