Florida Probate Litigation, Will Contest Lawyer & Attorney : Juan C. Antúnez : Serving Miami, Jacksonville, Tampa Saint Petersburg, Orlando, Fort Lauderdale

John W. Porter and Stephanie Loomis-Price of Baker Botts LLP in Texas and Charles E. Hodges II of Chamberlain, Hrdlicka, White, Williams & Martin in Georgia published a useful article entitled: Anticipating the Audit Call: Thinking About Controversy at the Planning Stage, Prob. & Prop., Jan./Feb. 2008, at 20.

The article does a good job of explaining why every email, letter, memo and draft document you prepare as an estate planner should be written under the assumption that one day the IRS (or opposing counsel in a will contest) will read the document and construe it in worst light possible for your client.  The following excerpt sums up this point:

 [T]he production of carefully drafted estate planning correspondence or similar documents in response to . . . an IRS request can actually help the taxpayer state his or her case with the examiner or in litigation. With that goal in mind, while a planner works on a client’s estate plan, he or she must assume that every document prepared by the estate planning lawyer, the client, the accountant, or any other person involved in the estate planning process may be reviewed by an IRS agent, appeals officer, IRS counsel, or the finder of fact in tax litigation (perhaps a judge or even a jury). Of course, certain documents may be withheld from production based on one or more applicable privileges. Thus, every estate planner should have a solid understanding of the relevant privileges.

The authors then go on to provide a solid summary of the evidentiary privileges most likely to come up in an estate tax audit or any other type of estate litigation. This article is worth holding on to. The following excerpts sum up the evidentiary-privileges aspect of the article:

Understand and Preserve All Privileges

All planners should have a general understanding of five types of privileges when representing their clients: (1) the attorney-client privilege, (2) the attorney work-product doctrine, (3) privileges extending to third parties who assist attorneys in rendering legal advice to their clients, (4) the tax practitioner’s privilege, and (5) the doctor-patient privilege.   .     .

Work-Product Doctrine

The work product of an attorney or his or her staff in anticipation of litigation is protected from disclosure. In fact, the attorney work-product doctrine is not a privilege, although some courts (and many practitioners) refer to it as one. The purpose of the work-product doctrine is to encourage lawyers to thoroughly prepare for litigation (whether pending or not) through investigation of the good and the bad, without fear of being forced to disclose their thoughts and analysis.

• Print
• Comments
• Trackbacks

Texas probate litigator J. Michael Young reported here in his Texas Probate Litigation Blog on a high profile case involving two Texas trusts worth upwards of $4 billion entitled: Hunt vs. Hunt: The Fight Inside Dallas' Wealthiest Families. The family drama swirling around this litigation makes for interesting reading, but it also distracts from what is conceptually a pretty simple conflict-of-interests case.

Al III is accusing Uncle Tom of conflicts of interest because of his roles as chairman of the board of Hunt Petroleum and as trustee for both of the trusts that own the company. . . .

Two Hunt Petroleum executives serving on the advisory panel of Hassie’s trust were concerned enough about the changes in Texas law that they asked the trust’s beneficiaries in January 2007 to release them from liability. Their request, according to a review of the document, cited potential conflicts relating to the need to diversify trust holdings, to avoid self-dealing, to “invest and manage the trust assets solely in the interest of the beneficiaries,” and to keep a beneficiary reasonably informed of trust activities. In other words, all of the things that Al III and his attorney, Bill Brewer, are complaining about.

Misconduct + No Damages = Empty Victory

As an outside observer I think the trust-beneficiary/plaintiff's toughest challenge will be to demonstrate that the malfeasance he's accusing his trustee of, even if true, has actually harmed the trust in some way. Here's how one observer quoted in the article put it:

Wes Holmes, a Dallas lawyer specializing in trust and estate disputes, is quite possibly the last lawyer left in Dallas who has not worked for the Hunt family. Trust law is quite malleable, unlike tax law, he says. Even self-dealing isn’t always illegal, if the end result was fair and benefited the beneficiary, included full disclosure and didn’t line the pockets of the trustee. “But as a general proposition, you don’t get to come in and rewrite the trust,” he says.

Proving damages will likely require a team of forensic accounts to comb though truck loads of files and untangle of maze of interrelated, closely held entities whose business operations span the globe. No easy task. An alternative strategy would have been to examine the trust books first and sue for malfeasance later . . . only after you've uncovered your smoking gun evidence. The "ask questions first, sue later" approach is possible in trust litigation because trust beneficiaries are legally entitled to this disclosure at any time, they don't have to sue their trustee for malfeasance to get at the trust books. This is a big difference between trust litigation and general commercial litigation that is often overlooked.

• Print
• Comments
• Trackbacks

Ohio trusts-and-estates attorney Michael D. Bonasera reported here in his The Ohio Trust & Estate Blog on a NY Times article he spotted entitled: Breaking Up Is Hard to Do. According to the NY Times, trust beneficiaries are growing increasingly dissatisfied with their corporate trustees:

Dissatisfaction with trustees — particularly corporate trustees rather than individuals — has been growing over the last five years, those experts say. Most complaints center on investment performance, mostly because beneficiaries have become more financially sophisticated and more types of investments are now available.

Poor service — including high turnover among trust officials and phone calls that are not returned — is another common complaint. “The longer a trust lasts, the more you’re going to have a change in trustee personnel,” said Richard Kahn, a partner in the law firm Day Pitney in Florham Park, N.J., who specializes in trusts and estate planning.

This is not the first time I've seen an article reporting on the drift away from traditional corporate trustees [see Trust in your bank?].

In my opinion if a trust is large enough to warrant professional management, appointing a corporate trustee is usually a good idea. However, the benefits of having a corporate trustee can be had without wedding your trust beneficiaries to a particular bank or trust company in perpetuity. The ability to fire a current corporate trustee and appoint another corporate trustee of their choosing would seem to address all of the trust-beneficiary grievances reported on in the NY Times piece. As pointed out in the article, the easiest and best way to address this issue is through proper trust-agreement drafting.

In the absence of a well-drafted trust agreement, trust beneficiaries traditionally could sue for the removal of their trustee only upon a showing of malfeasance. This type of litigation is fraught with uncertainty and usually very expensive for trust beneficiaries to pursue. The appeal of these cases drops even further when trust beneficiaries realize that although they have to pay their legal fees out of their own pockets, the trustee can use trust funds to pay its attorneys.

Fortunately for Florida trust beneficiaries, Florida's new Trust Code provides an alternative. If all of the trust beneficiaries agree, they can obtain an order compelling a trustee to resign under the following statute, without having to prove the trustee was negligent in any way.

736.0706 Removal of trustee.  .  .  .

(2) The court may remove a trustee if:

(d) .  .  . removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available. 

Although this statute is a vast improvement over traditional trust law with respect to the forced removal of unwanted trustees, it does impose one very significant requirement: a unanimous vote by all of the trust's qualified beneficiaries. As reported in the NY Times article, this may not be an insubstantial hurdle:

Mr. Dinzeo of Accredited Investors has been working for the last five years with a family where the younger generation is unhappy with the big international bank that has been handling its trust, worth more than $100 million. Trust officers were rotating every 12 to 18 months, these beneficiaries complained. “They wanted to switch down to a smaller trust company, a local player that would have less of an institutional feel,” Mr. Dinzeo said.

“The other side of the family agreed that the service level wasn’t par,” he added, but they wanted to stay with the big bank. “They felt that this large institution would be there. There would be continuity from generation to generation.”

The result? The beneficiaries talk periodically with bank officials, and conditions improve for a while, but then matters slide again, Mr. Dinzeo said. “It’s a constant recurring discussion that just sucks out the family’s resources and time.”

• Print
• Comments
• Trackbacks

Daniel Wise of the New York Law Journal reports in Disbarred Lawyer Sentenced After Admitting to Stealing From Grandparents on yet another case involving the theft of estate funds by the person who was supposed to be the estate's primary protector.  Here's the linked-to report in its entirety:

A disbarred Westchester County, N.Y., lawyer has admitted in court that he stole $310,000 from his grandparents.

Chase Caro of White Plains pleaded guilty Monday to grand larceny and has been sentenced to 2 1/2 to 7 1/2 years in prison by County Court Judge Susan Cacace.

A spokesman for Westchester District Attorney Janet DiFiore said Caro, 49, admitted stealing money meant for his grandparents' trust fund. He already had pleaded guilty to another theft of more than $470,000 from another elderly client. He was sentenced to 2 to 6 years on that count.

Caro agreed to pay restitution of $1.1 million, which also includes funds from a third theft. His sentences will run at the same time.

Caro, who was disbarred in November, is the son of Robert Caro, the Pulitzer Prize-winning biographer of Robert Moses and Lyndon Johnson.

Two points came to mind when I read this report. First, no matter who the fiduciary is or how trustworthy that person may appear, systemic, structural safeguards against malfeasance are ALWAYS needed. I've written about this point before and given specific examples of the types of safeguards I'm referring to [click here and here].  Second, if someone is accusing the fiduciary of taking money that didn't belong to him or her, that claim may morph into a criminal prosecution against the fiduciary. Which means that if you're representing the fiduciary you need to be thinking about whether or not your client should refuse to answer deposition questions or file an accounting based on his or her Fifth Amendment constitutional right against self-incrimination [click here for recent example of this point].

• Print
• Comments
• Trackbacks

Bud Newman of the Daily Business Review reported in Attorney Unlicensed in Florida Still Awarded $1 Million in Fees in Messy Probate Case on a case I first wrote about last year [click here].  Here's an excerpt:

A Palm Beach Circuit judge has awarded a North Carolina attorney $1 million in fees for representing a wealthy Palm Beach, Fla., widow in a messy probate case even though the attorney was not licensed to practice law in Florida.

Judge Jeffrey Winikoff ruled Winston-Salem, N.C., solo practitioner William West was entitled to the fee for his work protecting and improving the financial interests of Palm Beach resident Carla Morrison in a complex probate case in 2004 and 2005.

Morrison is the widow of Pedro Morrison, who died of a heart attack in 2003 at 49 shortly after filing for a divorce, leaving an estimated $100 million estate, according to court documents. His three beneficiaries were his widow, his brother Carlos Morrison and Carlos' son Tommy.

*     *     *     *     *

Winikoff also ruled West should get his fee despite the fact the paperwork he submitted to practice law in Florida had not yet been approved. The judge said West's failure to get his paperwork certified on time made him an unlicensed practitioner on the date the financial settlement was signed.

Even though West "engaged in the unlicensed practice of law" throughout his representation of Morrison, "the public policy of the state of Florida would not be compromised by allowing West recovery" of his fee, the judge wrote.

Four months after the probate settlement was approved in 2005, Winikoff noted the Florida Supreme Court changed the rules on appearances by out-of-state lawyers in disputes in Florida. The Florida Bar had already recommended the change, and "the American Bar Association had authorized conduct similar to West's since 2002," the judge wrote.

For those reasons, the judge ruled "there was no public policy violation that would justify" denying the fee to West.

The complicated case has another potentially bizarre twist that could have two big-name law firms battling each other over who should pay West.

West Palm Beach attorney Gerald Richman of Richman Greer Weil Brumbaugh Mirabito & Christensen, who represented West, said the total award with interest would be about $1.15 million after deducting the $41,000 he has already received. However, Richman said he may sue the Edwards Angell firm to collect some or all of West's $1 million award.

Morrison authorized $1 million to be set aside for West and held in an Edwards Angell trust account until the fee dispute with West was resolved, Richman said. Instead, he claimed the law firm returned the money to Morrison before the dispute was resolved and she spent at least $250,000 of it on a diamond bracelet and may have spent all of it.

Palm Beach Circuit Judge Karen Martin, who presided over the probate settlement, ordered Morrison in 2006 to return the money to the Edwards Angell trust account. Richman said she has not yet done so. Richman said he will first try to get West's money from Morrison, but if her assets -- including a $90,000 monthly payment from her late husband's estate -- are legally protected from being attached, "obviously we're going to look at the Edwards Angell firm" to try and collect the money.

"They made a mistake here," Richman said of Edwards Angell.

Lesson learned?

There are two sets of lawyers sweating bullets in this case. 

First, I was surprised to learn that an otherwise very astute out-of-state attorney (he apparently was instrumental in crafting a settlement agreement involving a complex $100 million estate) put his own $1 million fee at risk by apparently failing to file a timely pro hac vice motion.  Although these motions "should" be perfunctory in nature, as another out-of-state attorney recently learned, even something as simple as a pro hac vice motion can trip you up when you least expect it [click here].

I think everyone involved in this case probably assumes the fee-order reported on above will be appealed, so Mr. West's $1 million pay day remains uncertain.  This poor guy is probably kicking himself for not getting that darn pro hac vice motion filed when he first stepped into the case.

Second, the Edwards Angell attorneys are probably wishing someone in accounting had stood up and said "are you kidding me??!!" before they released the $1 million in estate funds they were supposed to retain in their escrow account pending final resolution of the fee dispute.  You can just imagine how upset the trial-court judge must have been when he learned these funds had been released to the client and she in turn testified that she blew $250,000 of those funds on a diamond bracelet and "may have spent all of it."  Oops!!

Stay tooned for more . . .

• Print
• Comments
• Trackbacks

The Associated Press just reported in Sperm Donor Case Heads for U.S. Supreme Court that a Topeka, Kan., man seeking parental rights to children conceived with sperm he donated is petitioning the U.S. Supreme Court to take his case.  For those of you who like your news served up on TV, [click here] for a local-news piece reporting on the same story.

The case reported on in the AP piece arises out of a Kansas Supreme Court ruling holding that a Kansas state law that doesn't give sperm donors any parental rights unless there's a written agreement is indeed constitutional.  As I noted when I first wrote about this case, the result would have been the same under Florida law [click here].

From a probate/inheritance-law viewpoint, I see this case as yet another example of the challenges our society (and by extension probate courts and lawyers) will have to confront as technology races ahead in the development of new forms of assisted reproductive technology, a point I've written about before and that is receiving quite a bit of academic/media attention lately [click here].

My bet is that the U.S. Supreme Court will take a pass on this case opting to allow more state courts to take a crack at the issue before weighing in with it's own conclusions.  But then again, you never know.  If the U.S. Supreme Court does take this case the ramifications could be huge, and not just with respect to inheritance rights.  Although I can't point to them exactly, I would imagine that somewhere in this case lurking in the underbrush are issues relevant to the abortion debate.  Any time the U.S. Supreme Court steps into that minefield (no matter how obliquely), the stakes are always sky high.

• Print
• Comments
• Trackbacks

Mark Fass of the New York Law Journal reported in N.Y. High Court Finds Adopted-Out Child Has No Claim to Jell-O Fortune on an interesting case determining the inheritance rights of a woman given up for adoption by her birth mother.  I've written about this case before [click here].  In Florida the answer when it comes to adopted-out children is clear: subject to a few specific exceptions, an adopted-out child is not considered an heir of the birth mother.  Here's the relevant Florida statute:

732.108 Adopted persons and persons born out of wedlock.--

(1) For the purpose of intestate succession by or from an adopted person, the adopted person is a descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent's family, and is not a descendant of his or her natural parents, nor is he or she one of the kindred of any member of the natural parent's family or any prior adoptive parent's family, except that:

(a) Adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and the natural parent or the natural parent's family.

(b) Adoption of a child by a natural parent's spouse who married the natural parent after the death of the other natural parent has no effect on the relationship between the child and the family of the deceased natural parent.

(c) Adoption of a child by a close relative, as defined in s. 63.172(2), has no effect on the relationship between the child and the families of the deceased natural parents.

For me the inheritance rights of adopted-out heirs are relatively easy to figure out.  What is much more difficult for courts to figure out are the inheritance rights of heirs conceived as a result of new developments in assisted reproductive technology [click here], or inheritance rights based on advanced DNA testing [click here].  Now that's hard.

Coming back to the linked-to story out of N.Y.  When reading the following excerpt, aside from the substantive-law issues regarding inheritance rights of adopted-out heirs, I was struck by the roller coaster ride that litigation can be for clients and counsel alike.  The poor woman at the center of this case went from a trial-court ruling holding that she didn't get a dime of the fortune created by her biological great grandfather, to an intermediate appellate decision reversing the trial court and ruling she was entitled to an approximately $3.5 million share of the estate, to a final appellate ruling swinging back to the original ruling that gave her nothing.  I think there's a lesson in here somewhere about litigation in general, but that's for a later day.  OK, so here's the excerpt from N.Y. High Court Finds Adopted-Out Child Has No Claim to Jell-O Fortune:

The daughter of an heir to the Jell-O fortune, who spent 14 years looking for her birth mother, is not entitled to a multimillion-dollar share of two disputed trusts, the New York Court of Appeals ruled Thursday.

In a separate ruling Thursday involving two joined cases, Matter of Adult Home at Erie Station, 21, and Regional Economic Community Action Program v. Bernaski, 22, the state's highest court ruled that an Orange County city improperly denied tax exemptions to a home for the elderly and a social work organization devoted to the poor.

In the disputed trusts decision, Matter of the Accounting by Fleet Bank, 27, the court reversed the Appellate Division, 4th Department, finding that the law in effect at the time of the execution of the trusts, in 1926 and 1963, does not imply the right for an adopted-out child to share in a class gift.

The unanimous court also found that public policy precludes office manager Elizabeth McNabb, 52, from receiving shares of two trusts created to benefit her birth mother's "descendants" and "living children."

Citing the court's own 1985 decision Matter of Best, 66 NY2d 151, Chief Judge Judith S. Kaye wrote, "As the Court noted, the finality of judicial decrees would be compromised if adopted-out children were included in such class gifts 'because there would always lurk the possibility, no matter how remote, that a secret out-of-wedlock child had been adopted out of the family by a biological parent or ancestor of a class of beneficiaries.'"

McNabb was born out of wedlock, and her mother consented to her adoption by strangers. She began her quest to find her birth family in 1974, at age 19. She finally uncovered the identity of her mother, Barbara Woodward of Rochester, N.Y., in 1988, when she uncovered a copy of her birth certificate from a Salem, Ore., vital-statistics office.

McNabb then called every Woodward in a Rochester phone book, finally hitting upon a cousin of her mother who passed on Ms. Woodward's married name, Barbara W. Piel.

Piel's grandfather, Francis Woodward, purchased the rights to the gelatin he would soon rename Jell-O in 1899 for $450.

McNabb called Piel, and the two soon developed a relationship. Shortly after Piel's death in 2003, McNabb received a phone call from a Fleet Bank trustee, requesting proof of her relationship to the late Piel.

After the bank determined that McNabb was not entitled to a share of the trusts benefitting Piel's children, she intervened in the Surrogate Court's settlement of the trusts.

In December 2005, Monroe County Surrogate Judge Edmund A. Cavalruso decreed that McNabb did not constitute a "descendant" or "child" of her birth mother and therefore was not an intended beneficiary.

Last March, the 4th Department reversed, effectively granting McNabb an approximately $3.5 million share of the two trusts.

Thursday, the Court of Appeals again reversed, holding that McNabb is in fact not entitled to any part of the trusts intended to benefit her birth mother's children.

• Print
• Comments
• Trackbacks

The materials distributed for the last meeting of the Florida Bar's Probate & Trust Litigation Committee included a subcommittee report entitled Collateral Attack on the Validity of A Marriage after Death Based Upon Undue Influence [click here then scroll down to AGENDA ITEM 6]. 

The subcommittee report provides an excellent state-by-state survey of current law regarding challenges to deathbed marriages and is well worth reading.  The report concludes with proposed legislation that would give a decedent's heirs standing to challenge a deathbed marriage on the grounds of fraud, duress or undue influence.  I think this is good public policy and the subcommittee members (John Moran, Bill Hennessey, Laura Sundberg, and Russ Snyder) should be commended for a job well done. Here's the report's conclusion and recommended statutory fix:

VI. Conclusion

In sum, Florida follows the common law and majority rule which only allows void marriages to be challenged after death. In most instances, Florida courts have held that marriages procured by fraud, duress, and undue influence are merely voidable, affording potential heirs no ability to challenge a marriage after death. Given the extensive rights available to a surviving spouse, a wrongdoer can profit significantly by simply inducing or influencing an elderly person to enter into a marriage. The Subcommittee recommends that the full committee consider and discuss legislation to address this issue.

VII. Proposed Statute

Over the last several meetings, the Probate and Trust Litigation Committee discussed and debated a legislative change to permit a challenge to a marriage procured by fraud, duress, or undue influence. At the August 2, 2007 meeting in Palm Beach, a straw vote revealed that a majority of the Committee was in favor of working on a proposed legislative fix. Accordingly, the proposed statute set forth below would provide an avenue to attack a marriage on the basis of fraud, duress, or undue influence after the death of a party to the marriage. The proposed statute aims to narrowly focus on inheritance rights. The proposed statute also borrows from F.S. §732.802 (the slayer statute), F.S. §732.5165 (effect of fraud, duress, mistake, and undue influence), and F.S. §733.107 (burden of proof in contests; presumption of undue influence).

73X.XXXX. Challenge to marriage procured by fraud, duress, or undue influence

     (1) An action to challenge a marriage may be maintained by any interested person after the death of the husband, wife, or both in any proceeding under chapters 731 through 736, 744, 747, and the Florida Probate Code, in which the fact of marriage may be material, either directly or indirectly.

     (2) The scope of this section is limited to all inheritance rights or other benefits a surviving spouse or any other person may acquire as a result of the surviving spouse's marriage to the decedent, including any rights or benefits acquired under chapters 731 through 736, 744, 747, and the Florida Probate Code.

     (3) A marriage is void for all purposes under subsection (2) if it is procured by fraud, duress, or undue influence.

     (4) In all proceedings contesting a marriage under this section, the contestant shall have the burden of establishing, by clear and convincing evidence, the grounds on which the marriage was procured by fraud, duress, or undue influence.

If after reading the linked-to subcommittee report you're still not convinced that the proposed Florida legislation is a good thing, then you need to read a newly-published law journal article that advocates strongly for exactly the type of legislation being proposed here in Florida.  As reported here in the Wills, Trusts & Estates Prof Blog, Terry L. Turnipseed (Assistant Professor of Law, Syracuse University College of Law) has recently published his article entitled How Do I Love Thee, Let Me Count the Days: Deathbed Marriages in America.  Here's the article's abstract:

Abstract:

Should you be able to marry someone who has only days to live? If so, should the government award the surviving spouse the many property rights that ordinarily flow from marriage?

In almost every state, the only person allowed to challenge the validity of a marriage (or, by extension, the property consequences thereof) after the death of one of the spouses is the surviving spouse! Seems incredible, does it not? The expectant heirs of a dying man (or woman) who marries on his (or her) deathbed cannot challenge the marriage post-death. Ironically, the one person allowed to challenge is the only person who has absolutely no motivation to do so.

How did this rule come about? What, if anything, should we do to change it?

This article explores these and other related questions, including a proposed theoretical framework for a model act giving heirs and beneficiaries standing to sue in order to negate the property consequences that flow from marriage, depending on the level of mental capacity at the time of the marriage.

Individuals on their deathbeds have just as much right to marry as anyone, and if competent and under no duress, the parties to the marriage certainly should have protection under the law. Protection should be appropriately shaped to avoid harassment of widows and widowers.

However, I simply cannot see a valid argument for denying a decedent-spouse's heirs (those who would take the decedent's property if he or she died unmarried and intestate) and beneficiaries (those who would take under the decedent's valid will, if any, absent a spousal election) the right to challenge the property consequences of a suspect marriage, especially when that challenge is based on traditional grounds that might naturally flow from a deathbed marriage.

Ironically, a decedent on their deathbed may not have the legal capacity to enter into a contract but can get married. It is only reasonable that these poor people and their heirs and beneficiaries should have state protection against a surviving spouse taking some or all of the decedent's property. Protection of heirs and beneficiaries is necessary where a surviving spouse may have few legitimate motives for entering into a deathbed marriage, particularly in light of the surviving spouse's ability to take some or all of the decedent's property.

The current incentives are off kilter. A greedy potential spouse has every incentive to find a minister or officer of the law willing to marry them off to a wealthy sick person and no legal incentives not to try it. No matter how ugly the situation, a marriage becomes set in stone with no person other than the surviving spouse allowed standing to seek redress in a court of law upon the death of one of the spouses. Allowing, in an appropriate way, heirs and beneficiaries to challenge the property consequences of a suspect marriage puts in place the proper disincentives before attempting to take advantage of one of feeble mind and spirit.

If these property consequences are allowed to stand, victims will continue to abound in deathbed marriage situations where consent is lacking: the decedent, her family, and society generally. Just imagine how you would feel losing an expectancy in such circumstances.

• Print
• Comments
• Trackbacks

This letter from Miami-Dade County Chief Judge Joseph Farina was recently emailed to Miami-Dade County attorneys asking us to get involved in the political process revolving around looming budget cuts.  According to Judge Farina:

The judicial branch was recently advised that due to the State of Florida's budgetary deficit totaling approximately 4 billion dollars, the State Courts' budget would have to be reduced by more than 16 million dollars by June 30, 2008. While this unanticipated reduction amounts to only 0.06% of the state budget, the loss of these funds would be devastating to  the judicial branch and its ability to provide access to justice and quality service to the public.

Should probate litigants "opt out" of the public court system?

As a "user" of Florida's court system faced with the negative consequences of an underfunded system, I have the option of passively accepting the status quo and simply resigning myself to doing the best I can under less than ideal circumstances.  Another possible reaction is to opt out of the public court system whenever possible.  There are no jury trials in probate litigation, so these cases lend themselves to alternative dispute resolution mechanisms.  Fortunately, existing Florida law provides litigants and their attorneys a wide menu of ADR options to chose from, including:

[1]  Court-ordered mediation (F.S. 44.102).  This option is well-known and commonly used.  It's not really an alternative to the public court system because there's no third party acting as "judge" to resolve the dispute.  The parties either voluntarily come to an agreement - or they don't - and end up right back in the public court system.

[2]  Court-ordered, nonbinding arbitration (F.S. 44.103).  This option is a little closer to private litigation because you have an independent third party making findings of fact and law that can end up in a legally-binding judgment.  Although the parties don't have to live with the arbitrator's ruling if they don't want to, if you decide to reject the arbitration ruling and go back into the public court system for a trial you may have to pay the other sides attorney's fees and costs if your after-trial judgment isn't at least 25% higher than what you got from the arbitrator.  This can be a powerful incentive to stick with the arbitration ruling.

[3]  Special Masters (Florida Rule of Civil Procedure 1.490; Florida Probate Rule 5.697).  Special masters can perform a wide variety of tasks usually shouldered by the trial judge directly. They serve various roles in pretrial discovery and proceedings, facilitate the mediated settlement of cases, make recommendations and submit reports to judges, assist with complex issues, chair advisory committees composed of lawyers of record, help administer class actions and settlements, propose orders jointly recommended by the parties, make decisions based on judicial reference or the parties' consent, and become engaged in post-trial proceedings.  In short, special masters are a flexible and commonly-used means of lightening the load for overburdened trial judges while also making life much easier for the litigants.  A recent Florida Bar Journal article by Howard R. Marsee entitled Utilizing "Special Masters" in Florida: Unanswered Questions, Practical Considerations, and the Order of Appointment does a good job of explaining all the ins and outs of using special masters in Florida litigation.

[4]  Voluntary trial resolution a/k/a "Rent-a-Judge"  (F.S. 44.104).  This is Florida's version of California's "rent-a-judge" statute, which first gained prominence in the early '80s.  I'm intrigued by this concept.  Why put up with an underfunded public court system when you can hire a judge with subject-matter expertise and get all the benefits of a trial and the right to appeal an adverse ruling while avoiding the worst aspects of the public court system?

The following excerpt from a piece in Time entitled Rent-a-Judge does a good job of describing the pros and cons of the rent-a-judge option in plain English:

Once both sides in a dispute agree to set up their own court, they select a judge (so far all have been retired jurists) and settle on his pay (usually $125 an hour, split by the parties). If the regular court approves, trial can begin when and where the litigants choose.

By averting the 4½-year wait for trial, parties almost automatically save money. Normally, Chodos asserts, "lawyers have to justify their existence, so they file 39 depositions and countless motions that are meaningless but costly." Another advantage of the system, particularly important to litigants in complicated business cases, is that parties can pick judges with expertise in certain fields. Moreover, proceedings can be held in secret and kept off the public record. When Tonight show Host Johnny Carson and NBC were battling over his contract in 1979, they hired a retired judge to hear their megabuck dispute behind closed doors. (Before the trial began, however, they settled the case.)

Judges regard the system as the best thing since raised benches. Los Angeles jurists, who earn $60,000 a year, retire comfortably: a 20-year man receives a pension of $45,000. But an energetic ex-judge can increase that income greatly by freelancing. Eugene Sax received more than $40,000 for five months of work on a dispute between California's air resources board and several oil industry giants.

Because private courts can work only when both parties want a prompt decision, their growth potential is limited. Explains Judge Schauer: "Over 99.9% of our cases involve one side that doesn't want to go to court. Defendants don't want that day of judgment." The typical rent-a-judge case involves squabbling business partners who are eager to get a ruling and resume their profitable venture. Recently, private judges have also started handling family law matters.

The private jurist program resembles arbitration, a widely used procedure that calls on a non-judge to resolve disputes typically involving labor contracts. But the California procedure has some features that arbitration does not. Examples: the judge must adhere to regular procedural and substantive aspects of law, and decisions can be appealed.

For Florida-specific articles describing our rent-a-judge statutory regime see: Christopher M. Shulman's “Voluntary Trial Resolution: Tailor-Made for Employment Claims”, The Checkoff, Vol. XLII, No. 3, at 5 (Florida Bar Labor and Employment Section May 2004) [click here]; and Cary R. Singletary's "Voluntary Trial Resolution - A New Dispute Resolution Process in Florida," The Checkoff, Volume XXX, No. 4, July 2000, The Florida Bar [click here].

• Print
• Comments
• Trackbacks

Coral Gables attorney Patrick J. Lannon just published in interesting article in this month's Florida Bar Journal entitled Challenging Inter Vivos Transfers Procured by Undue Influence: Factors to Consider.  The article is well researched and good stuff to keep on file.  I thought the following "nuggets" were especially interesting:

The Florida Supreme Court determined in Rich v. Hallman, 143 So. 292 (Fla. 1932), that “the degree of proof necessary to invalidate a will is much greater than that required to set aside a gift inter vivos.”

*     *     *     *     *

[A] long line of cases in Florida and elsewhere consider a gift made in the course of a meretricious relationship (such as a gift to a mistress) to be essentially per se undue influence.[FN 13]

[FN 13]: See Taylor v. Johnson, 581 So. 2d 1333 (Fla. 1st D.C.A. 1991), and cases cited therein. But see Hill v. Hill, 222 So. 2d 454 (Fla. 2d D.C.A. 1969), finding mere fact of meretricious relationship insufficient to prove undue influence where the donor left his wife and set up residence with his mistress and treated her as his wife). In light of Hill, Taylor limited the application of this line of cases to situations where the mistress gains at the expense of the spouse. See also deFuria, Testamentary Gifts Resulting From Meretricious Relationships: Undue Influence or Natural Beneficence?, 64 Notre Dame L. Rev. 200 (1989) (arguing that different treatment of meretricious relationships in undue influence cases can not be justified in light of modern legal and social developments).

• Print
• Comments
• Trackbacks

UPDATE:

This is a first, I just received a demand letter from a firm in California requesting that I "remove [this] posting from [my] blog forthwith."  [Click here for copy of demand letter].  Apparently, I "should" have known that the original story was pulled by the Orange County Business Journal.  No, I didn't know, and am at a loss as to why I "should" have known this fact.

I have to say I'm somewhat flattered that someone in California thinks this Florida-focused blog is important enough to warrant a demand letter.  Anyway, as stated in the demand letter, the offending report has been pulled by the Orange County Business Journal, so who am I to say no.  The post below has been redacted accordingly.

ORIGINAL BLOG POST - AS REDACTED:

I've previously written about Florida probate litigants successfully claiming the Fifth Amendment privilege against self-incrimination [click here].  The reason why litigants claim this constitutional right in a probate proceeding is because they don't want their testimony used against them in a criminal investigation.  This is a legitimate concern. 

A probate case out of California involving the estate of Vitamin C entrepreneur Jay Patrick and his California-based Alacer Corp. is a good example of how estate litigation can spill over into a criminal investigation.  .  .  .

[Original text deleted in response to the demand letter linked-to above.]

• Print
• Comments
• Trackbacks

• 4th DCA: Barrett v. Barrett, --- So.2d ----, 2008 WL 239032 (Fla. 4th DCA Jan 30, 2008)
• 4th DCA: Nasser v. Nasser, --- So.2d ----, 2008 WL 239073 (Fla. 4th DCA Jan 30, 2008)

• Print
• Comments
• Trackbacks

Can a person be disqualified from benefiting under a will because he or she was one of the attesting witness?  In Florida the answer is clearly NO, witnesses are NOT disqualified:

732.504 Who may witness.--

(1) Any person competent to be a witness may act as a witness to a will.

(2) A will or codicil, or any part of either, is not invalid because the will or codicil is signed by an interested witness.

Florida's is not the traditional approach, which may be why most people instinctively shy away from witnessing wills that benefit them.  For example, Joel Schoenmeyer recently wrote here on his Death and Taxes Blog about a famous pre-WWII case out of California where an "unorthodox" will was invalidated because the attesting witnesses also benefited from the will:

MISS LILLIAN PELKEY’S PETTICOAT
In Los Angeles, before the Second World War, George W. Hazeltine, 86, lay ill in hospital. He wanted to make a new will and leave $10,000 to his nurses, Lillian Pelkey and Madeline Higgins. There being no paper to hand, Miss Pelkey pulled up her dress, placed a board under her petticoat, and the will was pencilled on her undergarment. The petticoat was eventually admitted to probate but the nurses were prevented from benefiting from the will because they were attesting witnesses of it.

By the way, as noted by Joel, Illinois continues to follow the traditional rule disqualifying attesting witnesses from benefiting under wills they witnessed.  

The commentary to Uniform Probate Code section 2?505 (which was adopted verbatim by Florida as F.S. 732.504) explains why the old rule against witness-beneficiaries  was abandoned by the UPC drafters:

The position adopted simplifies the law relating to interested witnesses. Interest no longer disqualifies a person as a witness, nor does it invalidate or forfeit a gift under the will. Of course, the purpose of this change is not to foster use of interested witnesses, and attorneys will continue to use disinterested witnesses in execution of wills. But the rare and innocent use of a member of the testator's family on a home?drawn will is not penalized.

This approach does not increase appreciably the opportunity for fraud or undue influence. A substantial devise by will to a person who is one of the witnesses to the execution of the will is itself a suspicious circumstance, and the device might be challenged on grounds of undue influence. The requirement of disinterested witnesses has not succeeded in preventing fraud and undue influence; and in most cases of undue influence, the influencer is careful not to sign as a witness, but to procure disinterested witnesses.

• Print
• Comments
• Trackbacks

An article written by Anthony Lin of the New York Law Journal entitled N.Y. Court Suspends Lawyer Accused of Taking Money From Judge's Estate underscores the wisdom of building systemic, structural safeguards against malfeasance into ALL guardianship proceedings.  In Miami-Dade and Broward counties probate judges require the liquid funds of ALL probate or guardianship estates to be immediately deposited into a "restricted depository account" governed by F.S. 69.031.

Although some grouse about the minor expense and delay caused by a blanket policy requiring restricted depository accounts for ALL estates, those "costs" are far outweighed by the obvious advantage of eliminating the "moral hazards" inherent to attorneys (often solo practitioners) holding estate funds in their own firms' escrow accounts and paying themselves from these funds without having to justify such payments to any third party in advance.

The following excerpts from the linked-to New York Law Journal article prove - again - why systemic, structural safeguards, such as Florida's restricted depository account regime, are a good idea.

Emani P. Taylor has been the subject of disciplinary proceeding over her alleged withdrawal without authorization of $327,100 from accounts of John L. Phillips, a onetime Civil Court judge who was ruled mentally incompetent in 2002. Taylor, who served as Phillips' guardian from 2003 to 2006, has acknowledged withdrawing some money but claims she did so properly to pay both herself and others for services rendered.

*     *     *     *     *
Citing Taylor's lack of cooperation, the court said it would accept as uncontested an accounting prepared by a court-appointed examiner of the period during which Taylor acted as Phillips' guardian. According to this accounting, Taylor wrote $200,000 in checks to herself from guardianship accounts for supposed retainers and legal fees. Another $69,000 was paid to herself or to "cash" for supposed expenses, and another $57,000 was withdrawn in cash.

*     *     *     *     *
"While [Taylor] was entitled to be compensated for the work she performed for three years, self-help to guardianship funds is not the way to proceed," the court said.

The court also said it was "very disturbing" that Taylor had applied to the court for $853,100 in legal fees relating to her guardianship but did not disclose that she had already withdrawn from the guardianship account more than $327,000 for her own use.

• Print
• Comments
• Trackbacks (1)

UPDATE:

This is to follow up to my blog post below regarding the case filed against The Salvation Army claiming that under Florida's POD statute [F.S. 655.82] a charity is not a "person" and therefore not a permissible POD beneficiary.  The court has granted The Salvation Army's Motion to Dismiss [click here], holding that F.S. 655.82 does not define the word person and that the context requires that the definition in F.S. 1.01(3) must be used. Therefore, a person for purposes of Florida's POD statute includes corporate charities such as The Salvation Army.

Special thanks to Miami attorney Kevin E. Packman of Holland & Knight for bringing the dismissal order to my attention.

ORIGINAL POST:

Pay on death or "POD" accountants are familiar territory to Florida probate counsel. As my partner Michele "Mickey" Maracini commented in Salvation Army Accused of Draining Dead Man's Funds by Jordana Mishory of the Daily Business Review, POD accounts are often used as probate-avoidance devices:

Attorney Michele Maracini at Stokes McMillan Maracini & Antunez of Miami, who is not involved with the case, said people frequently use this type of account. She said by leaving an account in trust for a specific person, the recipient is able to bypass the probate process.

POD Account Litigation: Florida Charities Beware!

POD accounts, like any other form of jointly-titled bank account, are not immune from disputes . . . many of which end up getting litigated in court.  I recently wrote about one such case [click here]. The two Florida statutes principally at play in these cases are 655.82 and 655.825.

Due to a quirk in the statute charities may be legally disqualified from being designated as beneficiaries of POD accounts.  That's the focus of the litigation reported on in Salvation Army Accused of Draining Dead Man's Funds:

A lawsuit in U.S. District Court alleges the Salvation Army improperly took more than $120,000 from a dead man's bank accounts -- even though the man had left $106,000 of that amount in the charity's name.

Filed by the estate of Richard Jose Belanger of West Palm Beach, Fla., the Oct. 5 lawsuit claims the Salvation Army improperly took the money left for it in Belanger's payable-on-death bank account. The suit, filed on behalf of Richard Jason Belanger, a son who is serving as personal representative, claims only a person may be left money in these types of accounts. The suit alleges the account his father left for the charity is invalid.

Family attorney John Cooney said the Florida Legislature did not intend for the 1995 statute that allows for the establishment of pay-on-death accounts to apply to entities or organizations. He drew his analysis from a portion of the statute that requires proof that the beneficiary is alive on the date of the account holder's death.

"When you have a statute that changes the way the law used to be, you need to interpret it narrowly and strictly," said Cooney, a partner at Arnstein & Lehr in Fort Lauderdale. "It doesn't matter what the decedent intended. If the decedent wanted to leave money for charity, that's why we have wills."

The lawsuit is the first legal challenge to the statute in Florida, according to the complaint. An Ohio appellate court found that a similar statute in that state allowed for only people to receive money from these types of accounts.

If Belanger's estate is successful in its case against the Salvation Army, the case could affect money left for charities across the state.

Lateral Thinking?

By the way, I think this case is yet another example of creative, lateral thinking in the probate litigation context.  Rather then challenge the Salvation Army gift on undue influence or lack-of-capacity grounds, which as litigation goes is always expensive and always full of uncertainty, plaintiff's counsel took a left turn, read the POD statute and "viola," he developed a low-cost, high probability-of-success litigation strategy where, as plaintiff's counsel states, "It doesn't matter what the decedent intended."  The case now becomes an exercise in statutory construction, which is a relatively inexpensive and quick case to litigate. Win or lose, plaintiff's counsel gets an "A" for lateral thinking.

• Print
• Comments (1)
• Trackbacks

1. 2d DCA: In re Guardianship of Morrison, --- So.2d ----, 2007 WL 4180873 (Fla. 2d DCA Nov 28, 2007) (Contested Guardianship Proceeding)
2. 2d DCA: In re Commitment of Reilly, --- So.2d ----, 2007 WL 4270584 (Fla. 2d DCA Dec 07, 2007) (Contested Guardianship Adjudication)
3. FL SCT: Chames v. DeMayo, --- So.2d ----, 2007 WL 4440212 (Fla. Dec 20, 2007) (Homestead Litigation)
4. 3d DCA: Griem v. Becker, --- So.2d ----, 2007 WL 4482171(Fla. 3d DCA Dec 26, 2007) (Petition to Determine Heirs)

• Print
• Comments
• Trackbacks

The Florida Bar ethics rules governing contingent fee agreements are found in Rule 4-1.5(f).  Other than in divorce and criminal-defense cases [Rule 4-1.5(f)(3)], contingent fees are acceptable in any form of litigation, including contested probate proceedings.  Another point to keep in mind is that the percentage ceilings applicable to personal injury and medical malpractice cases, do NOT apply to probate cases [Rule 4-1.5(f)(4)].  In my experience, a straight 40% seems to be the norm for non-PI contingent fee agreements.

There's not a lot of Florida case law out there addressing contingent fees in probate cases.  The one Florida appellate opinion addressing this specific issue I am aware of is Brooks v. Degler, 712 So.2d 419 (Fla. 5th DCA 1998).  In Brooks the 5th DCA reversed a trial-court order enforcing a contingent fee in a contested probate matter because the contingent-fee agreement was poorly drafted, NOT because contingent fee arrangements are per se invalid.  Brooks provides solid guidance on how NOT to draft a contingent fee agreement for a probate case.

Late 40 Percent Retainer Pact Survives Widow's Dismissal Bid: Lawyers Seek $42 Million Fee

A recent NY Law Journal article entitled Late 40 Percent Retainer Pact Survives Widow's Dismissal Bid, reports on a NY case in which a 40% contingency in a contested probate matter resulting in a $42 million payday for the lawyers was challenged as being "unconscionable on its face."  The WSJ Law Blog also reported on this case here [the comments to the WSJ blog post are a fun read].  For a more colorful take on the case the NY Post delivers - as always - with: WAR OVER $40 MIL LEGAL BILL.

I previously wrote about this case here.

The NY appellate opinion in this case is worth noting by Florida probate litigators.  If someone ever tries to get out of your probate/contingency fee agreement, the arguments played out in this NY case just may surface in yours.  The following excerpt from the linked-to NY Law Journal article should give you a sense of the operative facts and law at play in this case:

A 40 percent contingent-fee agreement between New York law firm Graubard Miller and Alice Lawrence, the 83-year-old widow of real estate developer Sylvan Lawrence, was not unconscionable on its face, an appellate court said Tuesday, even though the agreement was executed in the final months of a decades-long estate litigation in which the firm had already received $18 million in hourly fees and three partners had further requested and received $5 million in "gifts."

In Lawrence v. Graubard Miller et al., a 4-1 majority of the New York Appellate Division, 1st Department denied Ms. Lawrence's motion to dismiss Graubard Miller's petition to compel payment of the contingent fee and said further proceedings would be needed to determine the propriety of the arrangement.

"[W]hile at first blush such agreement might arguably seem excessive and invite skepticism, before any determination regarding unconscionability can be made, the circumstances underlying the agreement must be fully developed, including any discussions leading to the agreement, as well as the prospects at that time of successfully concluding the litigation in favor of Mrs. Lawrence," Justice Richard T. Andrias wrote for a majority that included Justices David Friedman, George D. Marlow and Eugene Nardelli.

But in a blistering dissent, Justice James M. Catterson said he would not only have found the fee agreement invalid on its face but would also have referred the Graubard Miller lawyers to the Departmental Disciplinary Committee.

"Regardless of the procedural aspects of the parties' negotiations, no court can condone such an exorbitant fee," Catterson wrote.

Ms. Lawrence first retained the law firm, then known as Graubard Moskovitz McGoldrick Dannett & Horowitz in 1983, to represent her in a suit against Seymour Cohn, her late husband's brother, business partner and executor.

At the time of Mr. Lawrence's death in 1981, the brothers held a 12-million-square-foot real estate portfolio that included the former Port Authority building at 111 Eighth Ave. and a number of Wall Street office towers. It was estimated to be worth over $1 billion. Ms. Lawrence, who inherited 75 percent of her husband's interest, sought the portfolio's sale, but Cohn, who died in 2003, long opposed her.

Over the next 20 years, some $350 million was distributed from the estate, but the litigation dragged on until a final settlement was reached in May 2005 by which Cohn's estate would pay Ms. Lawrence and her children $105 million. Graubard Miller is seeking 40 percent of this amount, or around $42 million. Ms. Lawrence has sought rescission of the agreement as well as the return of all previous fees on the grounds of unjust enrichment and breach of fiduciary duty.

Though contingent fees of such magnitude are not uncommon in personal injury cases, they are rarer in estate cases. Moreover, such deals normally date from the beginning of the litigation and are in lieu of hourly fees, meaning a law firm bringing a case on a contingent-fee basis normally faces a risk of nonrecovery.

But Graubard Miller's contingent-fee deal was signed in January 2005, only months before the settlement. The 1983 retainer agreement in effect prior to that only specified hourly billing. In his dissent, Justice Catterson said the contingent fee might have been reasonable if agreed upon at the beginning of the case or if the firm had agreed to refund its previous fees.

• Print
• Comments
• Trackbacks

A NY Times article entitled A Lurid Aftermath to a Hedge Fund Manager’s Life reports on a brewing dispute over a Jupiter, FL estate reportedly "worth at least $25 million."  The following excerpts from the linked-to article give us a sense of what kind of case this will be (ugly!) and where the battle lines are being drawn:

JUPITER, Fla. — A life of private jets and black-tie balls ended with Seth Tobias, a wealthy investment manager and a familiar presence on CNBC, floating face down in the swimming pool of his mansion here.

*     *     *     *     *

Mr. Tobias, who was 44 years old, had apparently suffered a heart attack, his brother Spence said at the time. The police did not consider his death suspicious.

But now an unfolding drama over Mr. Tobias’s estate is providing a lurid account of fast money and faster living in the volatile world of hedge funds. Mr. Tobias’s four brothers and Mrs. Tobias are locked in a legal battle over the estate, which is worth at least $25 million. And, in a civil complaint, they have gone so far as to accuse her of murder.

The brothers, Samuel, Spence, Scott and Joshua, claim Mrs. Tobias drugged her husband and lured him into the pool. Bill Ash, a former assistant to Mr. Tobias, said he had told the police that Mrs. Tobias confessed to him that she had cajoled her husband into the water while he was on a cocaine binge with a promise of sex with a male go-go dancer known as Tiger.

*     *     *     *     *
At the center of the dispute is Mr. Tobias’s will, which designates his brothers as beneficiaries but does not name Mrs. Tobias. She contends that she is entitled to the estate because the will was signed before the couple married. In court filings, the Tobias brothers invoke Florida’s “slayer statute,” which prohibits inheritance by a person who murders someone from whom they stand to inherit. They claim she “intentionally killed” her husband “by asphyxiation and drowning.”

Florida's "pretermitted spouse" statute:

Mrs. Tobias' argument is based on Florida's version of the pretermitted spouse rule.  Here's how that argument is played out:

Mr. Tobias married Mrs. Tobias after making his will.  As such, pursuant to F.S. §732.301, regardless of what the will says, Mrs. Tobias is entitled receive a share of his $25+ million estate equal in value to that which she would have received if Mr. Tobias had died intestate, unless 1) provision has been made for, or waived by, Mrs. Tobias by a nuptial agreement; 2) Mrs. Tobias is otherwise provided for in the will (she apparently is not); or 3) the will discloses an intention not to make provision for Mrs. Tobias.

Pursuant to F.S. §732.102, the intestate share to which Mrs. Tobias would be entitled is as follows: a) If there are no living lineal descendants of Mr. Tobias, she gets the entire intestate estate; b) if there are surviving lineal descendants of Mr. Tobias, all of whom are also Mrs. Tobias' lineal descendants, she gets  the first $60,000 of the intestate estate, plus one-half of the balance of the intestate estate; and c) if there are surviving lineal descendants of Mr. Tobias, one or more of whom are not lineal descendants of Mrs. Tobias, she gets one-half of the intestate estate.

Florida's "slayer" statute:

Mr. Tobias' surviving brothers argue that Mrs. Tobias murdered her husband, and thus she shouldn't get a penny of the estate under Florida's version of the "slayer" rule, a doctrine I've written about before [see here, here, here]. 

Florida’s slayer statutes are found at F.S. § 732.802 (probate estates) and F.S. § 736.1104 (trust estates).

Although a murder conviction would make things easier for the Tobias brothers, it's not a pre-condition to their lawsuit. If Mrs. Tobias were convicted of the murder, that would conclusively divest her of all of her interest in Mr. Tobias' estate; but if Mrs. Tobias were acquitted of the murder (or never charged), the probate court could still weigh the evidence and determine "by the greater weight of the evidence" whether or not she should be divested. Here is the key language from F.S. § 732.802:

(1) A surviving person who unlawfully and intentionally kills or participates in procuring the death of the decedent is not entitled to any benefits under the will or under the Florida Probate Code, and the estate of the decedent passes as if the killer had predeceased the decedent.

*     *     *     *     *

(5) A final judgment of conviction of murder in any degree is conclusive for purposes of this section. In the absence of a conviction of murder in any degree, the court may determine by the greater weight of the evidence whether the killing was unlawful and intentional for purposes of this section.

• Print
• Comments (1)
• Trackbacks

In Florida a death certificate is prima facie proof of the “fact, place, date, and time of death as well as the identity of the decedent.” § 731.103(2), Fla. Stat. (2007). It is not conclusive proof of any fact related to the death.  If insurance proceeds are at stake, you'll need a lot more than a death certificate to prove the insured is dead [click here and here for real-life examples of this point].

In a CNN article entitled Wife of missing adventurer wants him declared dead, we get a glimpse of the quantity and quality of the circumstantial evidence Steve Fossett's wife will be submitting in Illinois to legally establish the fact of his death.  I am assuming insurance proceeds are at stake in this case.  Excerpts from the linked-to CNN article demonstrate that Mrs. Fossett is going far beyond simply filing a copy of his death certificate:

"As difficult as it is for me to reach this conclusion, I no longer hold out any hope that Steve has survived," wrote Peggy V. Fossett in court documents filed Monday with the Cook County [Illinois] Circuit Court.

She asked that the will of her husband of 38 years be admitted to probate.

*     *     *     *      *

"No one involved in the search holds out any hope that Fossett is still alive," the petition said.

Rick Rains, a sheriff's supervisor of the San Diego County Sheriff's Department, said Fossett's plane was last spotted at 11 a.m. less than 20 miles from the ranch's airport. "Given the timeline and the sighting of Fossett's plane, I believe he was within 20 to 25 miles of the ranch when he crashed," Rains said.

But, he noted, "the terrain is very difficult to search, with many areas where the crevices, deep ravines and closely grown trees make it impossible to see from the air what is on the ground."

"If Fossett was physically able to find water to survive on in the Nevada desert, he would have been physically capable of signaling searchers, by doing something as simple as crafting a large X of sticks or rocks, or by starting a signal fire," Rains said.

In affidavits supporting his wife's petition, Fossett's doctor described the 63-year-old man as physically and mentally fit.

Robert Keilholtz, a captain in the California Civil Air Patrol who was involved in the search, noted that the difficulty in finding wreckage was underscored by the fact that World War II-era plane wreckage was discovered last spring in the mountain range.

In the search for Fossett, wreckage from eight other crashes was discovered, one of them from the 1960s, the lawyers said.

• Print
• Comments (2)
• Trackbacks

In the latest twist to the Brooke Astor estate litigation [click here for a chronology of the case], Ms. Astor's son, Anthony D. Marshall, has been indicted on charges of plundering his mother's $198 million estate.  Here’s an excerpt from an AP article headlined Brooke Astor's son accused of plundering estate:

An indictment charges Marshall, 83, with grand larceny, criminal possession of stolen property, forgery, scheme to defraud, falsifying business records, offering a false instrument for filing and conspiracy.

The top count, grand larceny, is punishable by up to 25 years in prison.

Marshall's former attorney, Francis X. Morrissey Jr., also has been indicted on those charges.

"The indictment charges that Marshall and Morrissey took advantage of Mrs. Astor's diminished mental capacity in a scheme to defraud her and others out of millions of dollars," said District Attorney Robert Morgenthau.

Marshall's son, Philip, prompted the criminal investigation last year after he accused his father of neglecting Astor's care and stealing her money.

While a criminal indictment may seem like a win for the parties suing Mr. Marshall in the NY probate proceedings, in the long run it will likely cause more harm than good in the civil litigation.  For example, as previously reported by the NY Times in Talks on Astor Estate Halted to Clear Way for a Criminal Inquiry, settlement discussions that were apparently making good progress have now been halted at the behest of the prosecutor's office:

The district attorney’s office wants the settlement talks, being held under the auspices of the Westchester County Surrogate’s Court, held at bay to prevent prosecutors from losing a strategic edge, should indictments and a criminal trial result, according to the people who have been briefed.

This could happen, for example, if their key witnesses were deposed in the Westchester case by Mr. Marshall’s lawyers, who could then learn details of the district attorney’s line of inquiry, the people said.

*     *     *     *     *

During a half-hour hearing .  .  . Judge Anthony A. Scarpino asked a representative for the attorney general if the office’s position regarding settlement talks remained the same. He was told that it did.

“Negotiations are on hold status, as far as we’re concerned,” the judge then said, without mentioning the specific reason behind the stalled talks.

He reiterated that protracted litigation as a result of an inability to settle the case was “going to cost the charities a lot of money” by eroding their bequests. The settlement discussions spanned two weeks or so last month. The talks, spurred by the question of which of Mrs. Astor’s wills should be the valid one, focused on how much money the main charities would receive from her estate, which is valued at about $132 million, in addition to a trust estimated to be worth more than $60 million.

Not only do the civil litigants lose control of the case once a criminal indictment is issued, discovery becomes much more challenging because the other side can now "plead the 5th" and simply refuse to answer your questions in a deposition.  I've written before about this tactic [click here].  Ask yourself: who really benefits when the other side is indicted?

Lesson learned:

Criminal indictment = more expensive and time consuming civil litigation = unhappy client.

• Print
• Comments (2)
• Trackbacks (1)

I will be speaking on December 11 and 12 on probate litigation at an NBI seminar entitled The Probate Process from Start to Finish."  Click here for a PDF copy of the brochure.  The dates and locations for the seminar are:

• Miami, Florida - December 10, 2007
• Dania, Florida - December 11, 2007
• West Palm Beach, Florida - December 12, 2007

If you're an attorney looking to expand your practice into probate-administration matters, this introductory-level seminar is probably a good idea for you.  Here's how to register:

• WEB: register online at www.nbi-sems.com
• PHONE: (800) 930-6182 - weekdays 7:00 AM - 5:30 PM CST
• FAX: (715) 835-1405
• MAIL: NBI, Inc. P.O. Box 3067, Eau Claire, WI 54702

• Print
• Comments
• Trackbacks

The statute governing removal of personal representatives ("PR") in Florida is 733.504.  Acrimony - no matter how heated - is usually NOT sufficient to warrant removal of a PR [click here for recent example].  However, the outcome may be different if you can establish a detailed factual record proving that the acrimony is such that a significant portion of the estate will be eaten up in litigation expenses if the designated PR is not removed.  Note the shift in emphasis from "I don't like him" so please remove him as PR, t