New Probate & Trust Cases

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McMullin v. Beaver, 2005 WL 1278870 (Fla. 4th DCA June 1, 2005) (Trial Court Reversed) When a trust terminates as of a certain date, it is reasonable to assume that winding up the affairs of that trust may take some time after the termination date. But what if the “winding up” process includes filing a lawsuit after the trust termination date? Indian River Circuit Court Judge Robert A. Hawley ruled that was too much, and granted final summary judgement against the plaintiff trustee, finding that the trustee lacked standing to bring the action because the trust was already terminated. Although unclear from this opinion, apparently the defendants in this case argued that the trustee was attempting to unduly extend the winding up period for the trust by commencing litigation after the trust’s termination date. The Fourth DCA disagreed, and reversed the trial court finding that the trustee did in fact have standing to file his lawsuit after the trust termination date.
Continue Reading Fourth DCA says party being sued does not have the right to complain that a terminated trust’s “winding up” period is being unduly extended by the litigation

Blankfeld v. Richmond Health Care, Inc., 2005 WL 1226070 (Fla. 4th…
Continue Reading Court says AHLA nursing home arbitration clause is “void as contrary to public policy”; and even if enforceable, a health care proxy lacks authority to bind an incapacitated nursing home patient to arbitrate claims

Foust v. Maldonado, 30 Fla. L. Weekly D895 (Fla. 5 DCA April 1, 2005) (Trial Court Reversed) Proceedings for removal of guardians are initiated pursuant to F.S. § 2004->Ch0744->Section%20477#0744.477″>744.477 and Probate Rule 5.660. In this one-paragraph opinion, the Fifth DCA reversed Osceola County Circuit Court Judge Jeffords D. Miller for apparently failing to comply with the requisite notice requirements in a removal proceeding, but provides zero guidance for anyone other than the parties to this litigation for where the trial court went wrong.
Continue Reading If you’re going to remove a guardian, you have to give reasonable notice . . . unfortunately this one-paragraph opinion fails to provide any guidance regarding what reasonable notice may be

McJunkin v. McJunkin, 30 Fla. L. Weekly D840 (Fla. 2 DCA March 30, 2005) (Trial Court Reversed) In March 2001 the ward’s two sons had him declared incapacitated at age 79 because he apparently wasn’t managing his money as prudently as he could have. Two years later, in October 2003, the ward filed a “Suggestion of Capacity” seeking to have his rights restored. Even though the medical evidence presented in 2003 clearly showed that the ward was not incapacitated, and it was doubtful that he was ever incapacitated, Highlands County Circuit Court Judge J. David Langford ruled against him, declining to restore his rights. In reversing the trial court, the Second DCA makes clear that attorneys representing wards need to be advocates . . . not social workers, protecting individuals from, among other dangers, well intentioned relatives and courts guided by misplaced paternalism.
Continue Reading Just because a person makes bad decisions, doesn’t mean he should be declared incapacitated and have all his rights stripped away

Estate of Morales v. Iasis Healthcare Corporation, 2005 WL 1107067 (Fla. 2 DCA May 11, 2005) (Trial Court Reversed)

Normally, Florida Rule of Civil Procedure 1.260 requires that a plaintiff be substituted in a pending lawsuit within 90 days after the original plaintiff’s death is “suggested on the record.” Failure to comply with this deadline results in dismissal of the pending lawsuit. In this case, the personal representative of the estate died while a medical malpractice lawsuit was pending. Pinellas County Circuit Court Judge James R. Case dismissed the pending malpractice lawsuit under Civil Procedure Rule 1.260 because the estate’s successor personal representative did not file a motion for substitution within 90 days of the suggestion of death.
Continue Reading The 90-day time limit for moving to substitute parties under Florida Rule of Civil Procedure 1.260 does not apply when the personal representative of an estate dies

Whitener v. First Union National Bank of Florida, 2005 WL 1047268 (Fla. 5th DCA May 6, 2005) (Trial Court Order Quashed) This case involves a single trust divided into two parts. The same trustee for both trusts was First Union National Bank of Florida (“First Union”). One beneficiary sued First Union in Duval County, which falls under the jurisdiction of the First DCA. In the course of the Duval-county litigation, the First DCA ruled that certain documents fell within the crime-fraud exception of the attorney-client privilege, and were thus discoverable. The second beneficiary sued First Union in Seminole County, which falls under the jurisdiction of the Fifth DCA. In the course of the Seminole-county litigation, the Fifth DCA ruled in the case cited at the top of this post that the same documents addressed by the First DCA were privileged, and thus due to their previous disclosure, counsel for the Seminole-county litigant was disqualified. Not to be so easily deterred, the Seminole-county litigant simply hired the lawyers involved in the Duval-county litigation and moved forward with her case . . . with the benefit of the “privileged” documents her previous attorneys were disqualified for obtaining.
Continue Reading When two trust beneficiaries sue the same bank-trustee in two different counties . . . then appeal to two different DCAs . . . then obtain conflicting rulings on the same issue . . . well, things get interesting

Dempsey v. Dempsey, 2005 WL 954856 (Fla. 2 DCA April 27, 2005) (Appeal Dismissed)

Under Florida Probate Rule 5.360, determining the elective share is a two step process. First, the trial court must rule on the issue of entitlement (Rule 5.360(c)). Second, if the trial court finds entitlement, then it must determine the amount of the elective share, the assets to be distributed to satisfy the elective share, and, if contribution is necessary, the amount of contribution for which each recipient is liable (Rule 5.360(d)).
Continue Reading Order Determining Entitlement to the Elective Share Is Not Appealable

Butler v. Guardianship of Peacock, 30 Fla. L. Weekly D889 (Fla. 5 DCA April 1, 2005) (Compensation Disputes) Marion County Circuit Court Judge Brian D. Lambert ruled that under F.S. § 2004->Ch0744->Section%20108#0744.108″>744.108(1) a petitioner seeking an order to determine the incapacity of her mother was entitled to an award of attorney’s fees and costs incurred in the guardianship proceedings up to the date the petitioner’s siblings objected to her being appointed guardian . . . fees and costs incurred thereafter were not for “services rendered on [the ward’s] behalf.”
Continue Reading Court Says No to Attorney’s Fees for Litigation over Whom Will Be Appointed Guardian