Parker v. Parker, — So.3d —-, 2016 WL 404636 (Fla. 4th DCA February 03, 2016)

indispensable-partyWhen most lawyers think “inheritance” litigation, they assume you’re talking about some kind of will contest. In reality, inheritance disputes often have nothing to do with transfers made at death, and everything to do with gifts made while a senior family member is still very much alive and kicking.

Referred to as inter vivos transfers, these cases have a rich body of Florida law to draw on (see here). But a recent 4th DCA opinion demonstrates that commonly held assumptions about how these cases need to be litigated don’t always hold up under scrutiny. For example, if the claim is prosecuted after the donor dies, is his personal representative always going to be an indispensable party to the case? In other words, can your case get booted out of court if you don’t join the PR as a party to the lawsuit? The answer might surprise you.

Case Study:

Most probate litigators would assume you can’t adjudicate a dispute involving a decedent’s property without including his personal representative as a party to the case. Think about it. If plaintiff “A” believes defendant “B” unduly influenced an elderly parent to make a series of inter vivos gifts to B, who’s to say A has a stake in the outcome. If the gift is voided, you’ll need a probate proceeding to tell you who gets dad’s estate by default. And it might not be A. But does that mean you’re required — as a matter of law — to always add a deceased donor’s PR as a party to this kind of lawsuit? By statute, that’s the rule for wrongful death actions (see here). Does the same rule apply here? NO. So saith the 4th DCA:

Florida courts have repeatedly permitted a decedent’s children to pursue claims to set aside inter vivos conveyances based upon allegations of undue influence, without requiring that the decedent’s estate be joined as a party to the suit. See Prat v. Carns, 85 So. 681, 682 (Fla.1920) (entertaining suit brought by decedent’s sons to invalidate deeds executed by decedent prior to his death, on the grounds that they were obtained by undue influence); Mulato v. Mulato, 705 So.2d 57, 5963 (Fla. 4th DCA 1997) (entertaining suit brought by son to invalidate deeds executed by decedent before her death, on the grounds that they were obtained by undue influence); Dunn v. White, 500 So.2d 565, 566 (Fla. 2d DCA 1986) (permitting son to be substituted as plaintiff for father who died after filing suit to recover property allegedly conveyed as a result of undue influence); Omel v. Simpson, 386 So.2d 2, 2 (Fla. 4th DCA 1980) (entertaining suit brought by decedent’s daughter to challenge deed executed by decedent, on the grounds that it was obtained by undue influence); Barger v. Barger, 183 So.2d 253, 253–54 (Fla. 2d DCA 1966) (permitting decedent’s son, who was the sole heir, devisee, and executor of decedent’s estate, to pursue action to set aside conveyance of real estate as the product of undue influence).

Other family members have also been permitted to challenge inter vivos transfers of property for undue influence without joining the decedent’s estate. See Bryant v. Bryant, 379 So.2d 382, 383 (Fla. 1st DCA 1979) (entertaining suit by family member of unstated relation to cancel deed executed by decedent, on the basis of decedent’s alleged lack of capacity and a confidential relationship with the grantee); Wrobbel v. Walda, 217 So.2d 340, 341 (Fla. 4th DCA 1968) (entertaining suit by decedent’s granddaughters to set aside gifts and transfers made by decedent on the grounds that they were the product of undue influence); Rowland v. McCall, 118 So.2d 846, 847 (Fla. 2d DCA 1960) (entertaining suit by decedent’s sister to void deed on the grounds that decedent executed it as a result of undue influence).