Florida remains the largest recipient of state-to-state migration in the US, and the top choice among retirees.

Not surprisingly, many of these transplants are slow to abandon the professional relationships they’ve fostered back home — often for decades. When it comes to estate planning that can be a big mistake. Why? Because just because your estate planning documents work back home doesn’t mean they’ll work in Florida. And the person who “pays” for that mistake may be the attorney — not the client (think malpractice claim).

For example, if a trust’s executed somewhere else (like Illinois), F.S. 736.0403(1) tells us it’s generally going to be valid in Florida if it’s valid back home. But that last rule is subject to some big caveats, including Florida’s special execution rules for revocable trusts having “testamentary” provisions. In those cases F.S. 736.0403(2)(b) tells us the non-Florida revocable trust has to comply with Florida’s execution formalities for wills — no matter what the rule might be back home. That can be a huge trap for the unwary.

Lindenau v. Lundeen, 2018 WL 1152403 (M.D. Florida March 05, 2018)

At the heart of the Lindenau v. Lundeen case is an Illinois retiree who moved to Florida but kept working with his estate planning attorney back home. The decedent’s Illinois attorney (Lundeen) drafted an amendment to his client’s Illinois revocable trust after the client had moved to Florida and established a new domicile in Florida. The trust amendment was signed by the decedent (Falkenthal) in the presence of two witnesses, but only one of the witnesses signed it. That’s just fine in Illinois, not so much in Florida, as Falkenthal’s new Florida girlfriend (Lindenau) learned when the 2d DCA held in Kelly v. Lindenau (which I wrote about here) that the trust amendment granting her title to the home she shared with Falkenthal failed as a matter of law.

Failed Trust = Malpractice Lawsuit:

So what happened next? Surprise! Lundeen found himself on the receiving end of a malpractice suit in Florida. But it wasn’t all bad news. Fortunately for Lundeen he was represented by excellent defense counsel that got the case removed to federal court, then moved to dismiss it on jurisdictional grounds. Here’s how the federal judge described these two defensive moves:

Following the unfavorable appellate decision, Lindenau filed this lawsuit in the Circuit Court for the Twelfth Judicial Circuit in and for Manatee County, Florida. (See Doc. 2.) Lundeen timely removed it here. (Doc. 1.)

Lindenau alleges that Lundeen committed legal malpractice by “neglecting to draft the Second Amendment according to § 732.503 and § 736.0402, Fla. Stat., failing to advise Falkenthal regarding the execution requirements of Florida law, and by failing to ensure that the Second Amendment was executed by two attesting witnesses.” (Doc. 2 ¶ 22.) Lundeen moved to dismiss the Complaint for lack of personal jurisdiction(Doc. 10), filing a declaration in support. (Doc. 9.) Lindenau responded with her own affidavit and additional evidence. (Docs. 19, 19–1.) Finding no direct conflict in the submitted evidence when construed in Lindenau’s favor, the Court exercised its discretion to hold a non-evidentiary hearing.3 (See Doc. 24.)

Florida’s long-arm statute:

When you’re litigating long-arm jurisdiction it’s a two-step process. First the Court needs to determine if the claims against the non-resident defendant fall within F.S. 48.193, Florida’s long-arm statute. So does drafting a trust amendment in Illinois that fails in Florida fall under Florida’s long-arm statute? Yup:

In [Robinson v. Giamarco & Bill, P.C., 74 F.3d 253, 257 (11th Cir. 1996)] … Michigan attorneys negligently drafted and reviewed a Florida resident’s will, trust, and follow-on testamentary documents. 74 F.3d at 255–56. The client died in Florida, and the will was admitted to probate and the trust administered in Broward County, Florida. Id. at 256. The trust and the estate incurred unexpected tax liability and consequently sued the Michigan attorneys for malpractice. Id. The Eleventh Circuit held the Michigan attorneys “commit[ed] a tortious act within this state” because “[t]heir negligence has allegedly caused damages to an estate in Florida.” Id. at 257.

Robinson controls on the question of the long-arm statute’s applicability. Lundeen negligently drafted a trust amendment, allegedly causing damage to a third-party beneficiary of the Trust in Florida. (Doc. 2 ¶ 23.) Robinson and the “broad construction” the Eleventh Circuit traditionally affords § 48.193(1)(a)(2) subject Lundeen to Florida’s long-arm statute …

Choice-of-Law Clauses Really Matter:

But just because you’re covered by F.S. 48.193 doesn’t mean you’re done. Once that condition’s satisfied, the Court then moves to step two by evaluating whether the defendant has “minimum contacts” with Florida, such that hauling him into a Florida courtroom does not offend “traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). If step two’s satisfied, the case stays in Florida. If not, it gets dismissed.

In this case the Court said it was a “close call,” but the trust amendment’s Illinois choice-of-law clause tipped the scales in Lundeen’s favor; case dismissed. See you in Illinois. Here’s why:

Lundeen contends this case … aligns with Fleming & Weiss, P.C. v. First American Title Insurance Co., 580 So. 2d 646 (Fla. 3d DCA 1991). There, the out-of-state law firm sent an opinion letter to a Florida bank concerning a subordination agreement that would be used in Florida as part of a mortgage agreement to purchase Florida property, which allegedly caused harm in Florida. Id. at 647. The firm sent the letter “knowing and expecting” it would be used by the Florida bank “in transacting the Florida land loan.” Id. at 648 (Nesbitt, J., dissenting). Nevertheless, the court held the firm’s contacts with Florida insufficient to satisfy due process because the firm “did not solicit business in Florida, maintained no agent or property in Florida,” and “stated … the opinion was based solely on New York law.” Id. at 647–48.

That final point is a critical one. Like the opinion letter in Fleming & Weiss, Lundeen drafted the Trust so that Illinois law would govern. This is an “an indication” that Lundeen never intended to avail himself of Florida’s laws and did not expect to be haled into court here …

Also similarly to Fleming & Weiss, Lundeen does not solicit business in Florida, has no office in Florida, is not licensed in Florida, owns no property in Florida, and has no other clients in Florida. And while the attorneys in Fleming & Weiss … knew and expected their documents would be used in Florida, Lundeen had no such guarantee when he drafted the Trust and the Amendments. (See Doc. 9 ¶¶ 18, 25.) His lack of expectation or intention to subject himself to Florida law distinguishes this case. … By including an Illinois choice-of-law clause and not expecting or intending the Trust to be invoked by Florida courts under Florida law, Lundeen did not purposefully avail himself of this forum, according to Fleming & Weiss.

This case instead comes down to whether Lundeen’s act of drafting the First and Second Amendments “involve some purposeful availment of the privilege of conducting activities within the forum, thereby invoking the benefits and protections of its laws.” … Because the Trust and Amendments were to “be construed and governed by the laws of Illinois” (Doc. 2–1 at 8), and Lundeen did not expect nor intend for the Trust to be administered in Florida under Florida law (Doc. 9 ¶¶ 18, 25), Lundeen cannot be said to have created a “substantial connection” with Florida sufficient to subject him to jurisdiction. See Fleming & Weiss, 580 So. 2d at 647–48.6 Accord Newsome v. Gallacher, 722 F.3d 1257, 1280 (10th Cir. 2013) (collecting cases supporting general agreement among federal courts that “representing a client residing in a distant forum is not necessarily a purposeful availment of that distant forums’ laws and privileges”).