New Probate & Trust Cases

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Martin v. Hacsi, 2005 WL 1842678 (Fla. 5th DCA August 5, 2005) (Trial Court Affirmed) Counsel for the defendant in a personal injury action filed a motion for enforcement of Florida Rule of Civil Procedure 1.260(a) based on the plaintiff’s failure to move to substitute a party defendant within 90 days after a suggestion of death was filed. Sumter County Circuit Court Judge Hale R. Stancil granted the motion and dismissed the lawsuit. On appeal, the 5th DCA affirmed, providing some very helpful guidance along the way for plaintiffs trying to figure out what to do when a defendant dies and no personal representative is appointed.
Continue Reading Court says YES to dismissal of personal injury action based on plaintiff’s failure to file a timely motion to substitute a party defendant within 90 days after a suggestion of death was filed

Global Travel Marketing, Inc. v. Shea, 2005 WL 1576244, 30 Fla. L. Weekly S511 (Fla. July 7, 2005) (Fourth DCA Reversed)

In a case that is sure to be of interest to personal injury attorneys (and the probate/guardianship attorneys they work with), the Florida Supreme Court reversed the Fourth DCA and held that an arbitration agreement incorporated into a commercial travel contract is enforceable against the minor’s estate in a tort action arising from the contract. Although not central to the Supreme Court’s ruling, the Court did provide the following helpful summary of current Florida law regarding when legal guardianships must be established to settle a minor’s civil claims:

Under section 2004->Ch0744->Section%20301#0744.301″>744.301(2), Florida Statutes (2004), parents, acting as the natural guardians of their minor children, [FN6] may settle their children’s claims for amounts up to $15,000. A net settlement greater than $15,000 on behalf of a minor requires establishment of a legal guardianship. See § 2004->Ch0744->Section%20387#0744.387″>744.387(2), Fla. Stat. (2004). If a legal guardian and a minor have potentially adverse interests, or if otherwise necessary, the trial court may, for a settlement greater than $15,000, and must, for a settlement greater than $25,000, appoint a guardian ad litem to represent the minor’s interests. See § 2004->Ch0744->Section%20301#0744.301″>744.301(4)(a); Fla. Stat. (2004). A presuit settlement on behalf of a minor requires court authorization, which may be given if the court determines that the settlement is in the minor’s best interest. See § 2004->Ch0744->Section%20387#0744.387″>744.387(1), Fla. Stat. (2004). Settlement of a pending claim also requires court approval. See § 2004->Ch0744->Section%20387#0744.387″>744.387(3)(a), Fla. Stat. (2004).

FN6. For children of divorced parents, “the natural guardianship shall belong to the parent to whom the custody of the child is awarded.” § 2004->Ch0744->Section%20301#0744.301″>744.301(1), Fla. Stat. (2004).

Continue Reading Establishment of legal guardianship not required to enforce minor’s pre-injury arbitration agreement

Wehrheim v. Golden Pond Assisted Living Facility, 2005 WL 1537448 (Fla.
Continue Reading Is it possible for three children completely cut out of their mother’s last will, as well as the three wills she previously executed, to somehow end up as sole beneficiaries of her estate? Yes

Cason v. Hammock, 2005 WL 1488650 (Fla. 5th DCA June 24, 2005) (Trial Court Reversed) Florida’s probate code and procedural rules are designed to cut off possible litigation as soon as possible . . . whenever possible. Used wisely by an experienced probate attorney, these statutory and procedural rules are a powerful shield. On the other hand, not focusing on these seemingly mundane details exposes an estate to all the potential delays, expenses and rancor inherent to litigation. In this case the estate was challenged on two fronts: petitions were filed seeking (1) removal of the personal representative and (2) revocation of the probate proceedings. Citrus County Judge Richard Howard denied both petitions on purely procedural grounds. In other words, the estate seemed to have successfully employed the “litigation shields” built into Florida’s probate code and procedural rules. On appeal, the Fifth DCA snatched both victories away from the estate.
Continue Reading “Specific Devisee” has standing to petition for removal of a personal representative until the moment he or she actually receives full payment; Florida Probate Rules fail to provide for service of Formal Notice on Minors

Beseau v. Bhalani, 2005 WL 1488584 (Fla. 5th DCA June 24, 2005) (Trial Court Reversed) In the underlying wrongful death suit, the defendants prevailed after a jury trial. They then obtained an order awarding attorney’s fees and costs against the personal representative of the decedent’s estate . . . in her individual capacity. Apparently Volusia County Judge J. David Walsh thought this was OK because the personal representative was named “individually” in the complaint’s caption and she never objected. The Fifth DCA made quick work of the case pointing out that regardless of what the complaint’s caption may have said, the body of the complaint made clear that the lawsuit was brought on behalf of the estate, not the individual who happened to be serving as personal representative. And if you’re not a party to the lawsuit, the court can’t assess a judgment against you . . . even if you don’t object.
Continue Reading Court says NO to holding personal representative personally liable for attorney’s fees and costs in unsuccessful wrongful death lawsuit

Perry v. Agnew, 2005 WL 1397427 (Fla. 2d DCA June 15, 2005) (Trial Court Reversed)

Sometimes the best defense is a good offense. In this case, an individual trustee working out of his office in Boston, Massachusetts was sued by three beneficiaries, one of whom was a resident of Florida. The trustee moved to dismiss the complaint for improper venue under 2004->Ch0737->Section%20203#0737.203″>F.S. § 737.203. Charlotte County Judge Isaac Anderson, Jr. denied the trustee’s motion to dismiss on two grounds, the most interesting of which was based on a finding that the trust’s Florida choice-of-law provision exempted it from the application of 2004->Ch0737->Section%20203#0737.203″>F.S. § 737.203.
Continue Reading Choice-of-law Clause Will Not Override Florida’s Statutory Regime for Designating the Venue of Trust Litigation

As I previously posted here, “Dynasty Trusts” are estimated to hold up to $100 billion in assets. Dynasty trusts are only one subset of the trust options available to families. And as more and more of those families formalize their estate planning with the use of trusts for their children, more and more of those trusts will be targeted in divorce proceedings. Whether you represent a trust beneficiary considering a prenuptial agreement or a divorcing spouse attempting to shield his or her trust assets from Florida’s equitable distribution regime (i.e., 2004->Ch0061->Section%20075#0061.075″>F.S. § 61.075), you need to know what the key issues are. Step one, read the 1985 landmark Florida Supreme Court opinion Bacardi v. White, 463 So.2d 218 (Fla. Jan 31, 1985). Step two, read Colorado trust & estates attorney Marc A. Chorney’s recent Real Property, Probate and Trust Journal article entitled “Interests in Trusts as Property in Dissolution of Marriage: Identification and Valuation.”
Continue Reading What Divorce Attorneys Need to Know about Trust & Estates Litigation