William (Bill) Glasko of Miami, Florida has been on a winning streak lately. Last year he notched an impressive win before the 4th DCA in an appeal involving a tricky creditor-deadline issue, which I wrote about here. Bill followed that win with another appellate-court victory this year before the 3d DCA in Estate of Maher v. Iglikova, — So.3d —-, 2014 WL 1386660 (Fla. 3d DCA April 09, 2014), a case I wrote about here involving Florida’s pretermitted child statute.
I asked Bill to share some of the lessons he drew from the Maher case with the rest of us and he kindly accepted.
[1] What strategic decisions did you make in this case that were particularly outcome determinative at the trial-court level? On appeal?
In this case, the Decedent unknowingly conceived a child who was born prior to the making of his will. The child was not discovered by the Decedent until after the will was executed. The argument at the trial court level was straight forward – the plain language of the statute requires that the child cannot be pretermitted unless he or she is born after the will is executed. This child was born before the will was executed. At the appellate court level, the strategy shifted to the assertion of the appellate court’s role in interpretation and modification of statutes. On appeal, I emphasized what I perceived as a ‘failsafe’ in that the Decedent had made minimal provisions for a class gift to “children” which meant that the appellee had not been “omitted” from the estate – another reason why the child could not meet the statutory definition.
[2] If you had to do it all over again, would you have done anything different in terms of framing the issues for your trial-court judge? On appeal?
At the trial court level we were shocked that the court not only ruled against us on a Motion for Summary Judgment, but went on to adjudicate the ultimate issue of the pretermitted child in favor of our opponent without further proceedings. The appellee in her answer brief cleverly asserted that the “after discovered” child (rather than the “after born” child) should be treated as an “after adopted” child; who would take under the plain language of the statute: The statute provides that after born or after adopted children are pretermitted. On appeal , I focused on the appellate Court’s restrictions in modifying statutes. I also pointed out that paternity in our case was adjudicated after birth, and I drew a distinction between “adoption” and “adjudication of paternity” – the former establishing new rights, and the latter adjudicating an pre-existing relationship. I asserted that the appellate Court would go beyond its authority by modifying the statute, and argued that the relationship could not be construed legally as “adoption”. If I had it to do again, I would have made that distinction at the trial level. To the credit of appellee’s counsel, I didn’t consider it.
[3] Looking back from your perspective as a litigator, do you think there’s anything that could have been done in terms of better estate planning while Mr. Maher was alive to avoid this litigation or at least mitigate its financial impact on the family?
Estate planners know that people do not like to confront estate planning – there is something morbid about it. The reality is that our clients must reexamine everything with every life change. A new baby, a better job, an inheritance, marriage, divorce, adoption, everything warrants a fresh look at the current state of the “plan”. As litigators, we make our living in litigation resolving the problems that arise from inadequate planning. If we get in early enough, we can help the client make provisions to avoid unnecessary litigation. The money spent planning before death pales in comparison to the potential cost of resolving conflict after death. In this case, had the Decedent consulted his attorney upon learning of the child and made specific provisions in his will to include or exclude the child, the litigation would have been avoided.
[4] Any final words of wisdom for estate planners and probate lawyers of the world based on what you learned in this case?
My primary areas of practice are probate litigation and family litigation. I routinely advise my family clients on estate planning and insurance issues as they come out of marriages and reevaluate their relationships. This is the perfect time to caution “fresh starters” on the importance of estate planning. We should all be diligent in attacking the potential problems before they arise.