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This is the latest chapter in the battle over the fortune of Fontainebleau heir Ben Novack Jr. Novack was murdered in 2009. In 2012, his estranged wife, Narcy Novack, was sentenced to life in prison for paying hitmen to  kill him and his 86-year-old mother.

Prosecutors alleged that Narcy was afraid that her husband would leave her for his mistress, and that a prenuptial agreement would only leave her $65,000 instead of the bulk of her late husband’s multimillion dollar estate. They claimed she was motivated by “hatred, greed, and vengeance.”

Novack’s murder was the subject of intense media coverage, including a multi-part series on NBC’s Dateline entitled Family Affair, and a made-for-television movie entitled Beautiful & Twisted, which starred Rob Lowe as Novack. What gets lost in all the hype over the gruesome murders and ensuing criminal trial is the heated probate litigation over Novack’s estate, which has been ongoing for years, as reported by the Miami Herald in As family fight continues, Ben Novack Jr. fortunes shrink:

Novack’s assets, once estimated at as much as $10 million, appear to have dwindled down to less than $4 million, according to court documents. The estate has been the focus of a five-year probate battle involving a legion of family members, long-lost relatives and even one possible illegitimate child. They have been contesting the slain millionaire’s 2006 will, which left the bulk of his property, cash, life insurance, Batman collectibles and other valuables to his wife, Narcy.

What’s a “slayer statute”?

Novack’s wife, Narcy, is prohibited from inheriting any of her husband’s wealth by Florida’s version of the “slayer rule,” a common-law doctrine that prohibits a murderer from inheriting property from the person he or she killed. This doctrine’s been codified in section 732.802 of Florida’s Probate Code, and comes up more often than you’d expect (for recent examples see here, here, here). With Narcy out of the picture, Novack’s last will leaves $150,000 to Narcy’s daughter, with the bulk of Novack’s multimillion dollar estate going to Narcy’s two adult grandsons.

Case study: Fiel v. Hoffman, — So.3d —-, 2015 WL 4549604 (Fla. 4th DCA July 29, 2015):

So here’s the question raised by this appeal. If a murderer indirectly benefits from her crime because her family members inherit the wealth of the man she killed, is that legal? Again as reported in the Miami Herald piece:

Harvey Morse, a genealogist researcher and lawyer, is representing some members of the clan who believe that the slayer statute should be expanded to include Narcy’s daughter and grandsons. “Look at it this way. Grandmom is in prison and she tells her grandsons she needs money for legal fees,” Morse said. “It’s not out of the possibility that the grandsons would help her out.”

Does Florida’s Slayer Statute also disinherit a killer’s descendants? NO

The extension argument’s been consistently rejected by our appellate courts. First by the 2d DCA in In re Estate of Benson, 548 So.2d 775 (Fla. 2d DCA 1989) (“Slayer Statute” did not prevent minor children of man who murdered his mother and brother from inheriting their father’s share under his mother’s will or their father’s share of his brother’s intestate estate.), then by the 3d DCA in Lopez v. Rodriguez, 574 So.2d 249, 250 (Fla. 3d DCA 1991) (“We decline to hold that the legislature intended the statute to deprive an innocent beneficiary of the trust proceeds.”), and then again by the 1st DCA in Chatman v. Currie, 606 So.2d 454, 456 (Fla. 1st DCA 1992) (“We hold as a matter of law that section 732.802 does not apply to an innocent contingent beneficiary’s entitlement to life insurance benefits resulting from the killing of the primary beneficiary by the insured who then commits suicide.”). In all of these cases the courts focused on the clear and unambiguous text of the statute, which only applies to the killer — not his family members. Not surprisingly, the extension argument didn’t work this time around either. So saith the 4th DCA:

We agree with our sister courts [in Benson (2d DCA), Lopez (3d DCA), and Chatman (1st DCA), as well as the trial court [in this case], that the statute is clear and unambiguous and disinherits only the slayer, or anyone who participates in the killing of the decedent, from any rights to the victim’s estate. Appellants contend that Benson and its progeny all involved innocent family members related by blood, whereas here the daughter and grandchildren were related to the murderer and not to the decedent. Benson, however, did not turn on this factor. Rather, the Benson court relied on the plain language of the statute, which by its terms excludes only those who actively participate in procuring the death of the decedent.

. . .

The statute is clear. To interpret the statute to preclude the stepchildren from recovering would require us to add words to the statute, something we cannot do. If the Legislature deems as a public policy matter that anyone inheriting through the slayer should be barred from receiving any share of a victim’s estate, it can amend the statute to accomplish that result.

Bonus material:

For more on the issues raised by this case, you’ll want to read Is it Time to Expand Florida’s Slayer Statute? by Jeffrey A. Baskies and Justin M. Savioli of Katz Baskies & Wolf PLLC, Boca Raton, Florida. Here’s an excerpt:

Collateral Beneficiaries Issue Exists in Many States

This is not a uniquely Florida issue, as several other states have similar statutes. If the Florida statute is to be expanded, there are models worthy of consideration. The Fourth DCA notes the appellants cited several cases from other states with laws that may be more progressive on this issue.

According to the decision, the appellants cited to state Slayer Statutes and cases in Rhode Island, Indiana and Illinois, all of which precluded stepchildren from inheriting where their parent was the killer.

The Fourth DCA quoted from the Rhode Island Act, which in pertinent part provides that “[n]either the slayer nor any person claiming through him or her shall in any way acquire any property or receive any benefit as the result of the death of the decedent, but the property shall pass as provided in this chapter.” Quoting Swain v. Estate of Tyre ex rel. Reilly, the court held that the Rhode Island statute precluded stepchildren of the deceased from inheriting from her, when their father was charged with her murder, and the children stated that they would use their inheritance to pay for their father’s criminal defense.

The Fourth DCA also cited to an Illinois case, In re Estate of Mueller, noting the Illinois Slayer Statute provides that a slayer should not receive “any property, benefit, or other interest by reason of the death, whether as heir, legatee, beneficiary… or in any other capacity ….” In Mueller, the court construed this language as prohibiting the slayer/wife’s children from their share of her husband’s estate, because the wife could receive a benefit in her capacity as guardian of her minor child.

Perhaps the slayer statutes in Rhode Island, Indiana or Illinois offer helpful examples.

. . .

Developments in other states as well as interesting Florida cases such as the Fiel case should lead the Florida Bar to review the current Slayer Statute and consider if some expansion and modernization is in order. Any expansion of the statute should also consider the addition of an option for a court to avoid the application of the statute if the preponderance of the evidence indicates application of the statute would cause a manifest injustice.

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In today’s world the vast majority of inherited wealth gets transferred from one generation to the next by nonprobate “will substitutes” that are not subject to probate, are not controlled by a person’s will, and are not governed by our probate code. Known as the nonprobate revolution, it’s a trend that’s been accelerating for decades.

If you’re a trusts and estates lawyer, the challenge is to adapt to this new reality . . . or perish. For example, under section 732.5165 of our probate code a will that’s the product of fraud, duress, mistake, or undue influence is invalid. This kind of probate-code provision was all we needed when most wealth was in the form of real estate, and most of that property transferred from one generation to the next in the context of a probate proceeding. Today, most wealth is in the form of investment and savings accounts that usually transfer from one generation to the next via nonprobate transfers. These transfers aren’t governed by our probate code. So if one of these transfers is the product of undue influence, can it also be invalidated? Maybe, but you won’t find your answer in our probate code. For these cases you need to look elsewhere.

Fortunately, the 1st DCA’s published two opinions that give us a roadmap for navigating nonprobate inheritance disputes involving two of the most common will substitutes out there: joint accounts and pay-on-death (“POD”) accounts.

Can you challenge a joint account designation on undue influence grounds? YES!

Brown v. Brown, — So.3d —-, 2014 WL 4435974 (Fla. 1st DCA September 10, 2014)

Mrs. Brown’s will split her estate equally among her six children. Her savings and investment accounts didn’t, these accounts were either titled jointly with one adult child or designated POD to that same adult child. In other words, all of the probate assets went one way (to her 6 children in equal shares), and all of her nonprobate assets went another (to 1 child only). The trial court appointed a magistrate to conduct an evidentiary hearing, who concluded Mrs. Brown’s nonprobate accounts didn’t reflect her true testamentary intent. Specifically, the magistrate determined:

[Appellee] has demonstrated by clear and convincing evidence, which includes the admissions of Defendant, that the decedent’s intent was for her “cash accounts,” including her certificates of deposit, to first be used to pay expenses associated with her death and the balance to be divided equally among her six children.

So far so good. And the magistrate also got it right when he applied F.S. 655.79 to invalidate the joint account designations. Under F.S. 655.79, you can invalidate a joint account designation by proof of “fraud or undue influence or clear and convincing proof of a contrary intent.” The statute reads in pertinent part as follows:

(1) Unless otherwise expressly provided in a contract, agreement, or signature card executed in connection with the opening or maintenance of an account, including a certificate of deposit, a deposit account in the names of two or more persons shall be presumed to have been intended by such persons to provide that, upon the death of any one of them, all rights, title, interest, and claim in, to, and in respect of such deposit account … vest in the surviving person or persons….

(2) The presumption created in this section may be overcome only by proof of fraud or undue influence or clear and convincing proof of a contrary intent….

Where things went sideways is the law that was applied to invalidate the POD account designations (this is the kind of mistake that only happens in a nonprobate world!). Who gets these accounts when someone dies is controlled by F.S. 655.82, which does not have the same statutory invalidation mechanism that applies to joint accounts. Bottom line, even though the evidence was the same for all accounts, the POD account ruling was reversed because the wrong law was applied.

Regarding ownership of the funds in a POD account when the account owner dies, the statute provides, “On the death of the sole party or the last survivor of two or more parties, sums on deposit belong to the surviving beneficiary or beneficiaries.” § 655.82(3)(b), Fla. Stat. (2007) (emphasis added). No rebuttable presumption applies. Because the magistrate applied the incorrect statute to the POD accounts, the trial court abused its discretion in adopting the portions of the magistrate’s report and recommendations relating to those accounts.

So does this mean POD accounts are immune to challenge on undue influence grounds? Based on the 1st DCA’s ruling in Brown you might think so. And you’d be wrong, as the litigants learned the hard way in Keul, the next POD account case the 1st DCA tackled.

Can you challenge a POD account designation on undue influence grounds? YES!

Keul v. Hodges Blvd. Presbyterian Church, — So.3d —-, 2015 WL 7444212 (Fla. 1st DCA November 24, 2015)

In this case a POD account designation was invalidated on undue influence grounds. The issue on appeal was whether this kind of case was possible as a matter of law. Trial court said yes, and the 1st DCA agreed. Here’s why:

A POD designation or Totten trust, like a transfer-on-death (TOD) provision, is a “will substitute” that does not transfer ownership of funds until the death of the account holder. E.g., Blechman v. Estate of Blechman, 160 So.3d 152, 157 (Fla. 4th DCA 2015) (recognizing the existence of these and other will substitutes). These are generally considered inter vivos transfers, although they also have attributes of testamentary transfers because they have no effect until the death of the owner. Under Florida law, they are subject to challenge on grounds such as undue influence, fraud, duress, and overreaching.

But what about Brown? According to the 1st DCA, it never ruled you can’t invalidate a POD account designation on undue influence grounds, all it said was that the plaintiff in that case went about it the wrong way. In this case, the challenger got it right. Here’s why:

Appellant misplaces reliance on our decision in Brown v. Brown, 149 So.3d 108 (Fla. 1st DCA 2014). The issue in Brown was whether the decedent’s intent in establishing joint accounts was consistent with property distribution provisions in her will. We held that the magistrate incorrectly applied section 655.79 of the Florida Statutes, as it relates to ownership of funds after death of any joint account owner, to POD designations. Brown did not involve, and does not preclude, an undue influence challenge to a POD designation.

Likewise, Appellant misplaces reliance on the absence of express undue influence provisions in Florida’s banking law on POD designations. The banking statute, section 655.82 of the Florida Statutes, defines a POD designation; and further provides that, “On the death of the sole party or the last survivor of two or more parties, sums on deposit belong to the surviving beneficiary or beneficiaries.” § 655.82(3)(b), Fla. Stat. (2013). Appellant argues that a POD designation cannot be invalidated for undue influence because this statute does not contain the same undue influence provision that the Florida Probate Code contains. The fact that the banking regulatory statute does not expressly address grounds for invalidating a POD designation is not controlling. Seymour v. Seymour, 85 So.2d 726, 727 (Fla.1956) (holding that banking laws, designed primarily to regulate banks, “are not necessarily conclusive of the ownership of deposited money”). We reject Appellant’s argument because a POD account, although not in the strictest sense a testamentary device and not subject to the formalities required of wills, functions as a will substitute and partakes of many of the same equitable considerations that apply to testamentary transfers. Florida law and policy against abuse of fiduciary relationships apply to contracts, inter vivos transfers, and testamentary transfers, and are properly applied to determine whether a POD designation has been obtained through undue influence. We affirm the trial court’s conclusions that, on the evidence presented, Appellant obtained this POD designation through undue influence, and the gift is void.

What’s the take away?

The nonprobate revolution is a game changer for trusts and estates lawyers. But fundamentally speaking, there’s nothing new here; will substitutes are simply a different way of doing the same job traditional wills have always done. As explained by Prof. Langbien in The Nonprobate Revolution and the Future of the Law of Succession, modern will substitutes are “functionally indistinguishable from a will – each reserves to the owner complete lifetime dominion, including the power to name and to change beneficiaries until death.” And POD and joint accounts are two of the most common will substitutes out there. Here’s what Prof. Langbien had to say about them:

In arranging their personal banking, Americans meet another raft of invitations to execute will substitutes. Married persons in particular elect these options widely. The purest of the bank-operated will substitutes are accounts over which the depositor retains explicit lifetime dominion while designating beneficiaries to take on his death. Where local law permits, such arrangements may assume the blatant form of the P.O.D. (“pay on death”) account, which was pioneered by the United States Treasury for selling government bonds. . . .

More commonly, the joint bank account – whether savings or checking – is manipulated to do the work of a will. In theory, joint accounts differ from other pure will substitutes: they look more like gifts than like wills. When the owner of property arranges to take title jointly, he supposedly creates a present interest in his donee-cotenant. In the prototypical joint tenancy of realty, the donee receives an interest equal to the donor’s, and the donor loses the power to revoke the transfer. Moreover, the commonality-of-use rule requires that the cotenants act together in order to transfer the realty. Joint accounts of personalty, however, “differ from the true joint tenancies as defined in [real] property law, for by the privilege of withdrawal either [cotenant] may consume the account.” Accordingly, a depositor may name a cotenant on a bank account but deal with the account as though it were his own. The cotenant may not even know that he has been designated. Depending on his contract with the bank, the depositor may revoke and alter cotenancy designations as freely as he would beneficiary designations under any of the other will substitutes. He may also achieve the same result by closing the account, withdrawing the funds, and opening another account as he pleases. In this way, joint accounts may be used to approximate the incidents of a will; the cotenancy designation is effectively revocable and ambulatory.

So what’s it all mean? Will “substitutes” = Wills. So the basic facts driving a traditional will contest are also going to drive inheritance cases involving nonprobate transfers. Which means that if you can prove undue influence, that same evidence should control the outcome of your case regardless of whether or not you’re litigating a will contest governed by F.S. 732.5165, a joint account case governed by F.S. 655.79, or a POD account case governed by Florida common law. And if you’ve been litigating will contests all your life, don’t fret. You’ll do fine in this brave new world. The hard part’s proving your case. The law’s the easy part. And the 1st DCA’s just made it easier for all of us the next time a client walks through the door with an inheritance case involving contested joint or POD accounts.

In re Estate of Murphy, — So.3d —-, 2015 WL 6777216 (Fla. 2d DCA November 6, 2015) 

This case has it all. It’s been in the news for years (see here), resulted in a prominent lawyer’s tragic fall from grace and eventual disbarment (see here), was at least partially responsible for new legislation fundamentally changing Florida common law involving gifts to lawyers (see here), and last but not least, it’s produced a must-read appellate decision dissecting Florida’s version of the dependent relative revocation doctrine and how it comes into play when a will’s challenged on undue influence grounds.

Dependent relative revocation (“DRR”) doctrine:

In this latest chapter of the Murphy estate saga the 2d DCA’s provided a detailed road map for litigating undue influence claims against the backdrop of the dependent relative revocation (“DRR”) doctrine, which although centuries old (it’s been around since 1717), rarely gets much air time in our appellate courts. Without getting sidetracked by why I think this issue rarely gets appealed, suffice it to say the DRR doctrine’s lurking under the surface of every will contest where the testator signed more than one will (which is almost always). Here’s how the 2d DCA defined the doctrine and its intended purpose:

We begin by examining the legal construct at the heart of this appeal, the doctrine of dependent relative revocation. Founded in the common law of early eighteenth century England, the doctrine was first adopted by the Florida Supreme Court, which explained:

This doctrine has been stated and reiterated by many courts since it was first expounded in 1717, but stated simply it means that where [a] testator makes a new will revoking a former valid one, and it later appears that the new one is invalid, the old will may be re-established on the ground that the revocation was dependent upon the validity of the new one, [the] testator preferring the old will to intestacy.

Stewart v. Johnson, 142 Fla. 425, 194 So. 869, 870 (Fla.1940) (citation omitted). Grounded in the axiom of probate law that intestacy should be avoided whenever possible, the doctrine of dependent relative revocation, our court has observed, is “a rule of presumed intention” that creates a rebuttable presumption that the testator would have preferred to have a prior will effectuated over statutory intestacy.

The DRR doctrine is intended to avoid intestacy whenever possible. See In re Estate of Baer, 446 So.2d 1128, 1128 (Fla. 4th DCA 1984) (“[T]he law abhors intestacy.”). It does this by focusing on a will’s revocation clause. These are simple, one-line boilerplate clauses included in all new wills that avoid confusion by explicitly revoking all prior wills. Here’s a sample revocation clause published on the Nolo website:

“I revoke all wills and codicils that I have previously made.”

If a testator’s last will’s invalid for any reason, the DRR doctrine tells us we’re supposed to presume his revocation clause is also invalid, which avoids intestacy by resurrecting his most recently signed and preexisting “similar” will. In undue-influence cases, this presumption can be overcome (“rebutted”) if there’s evidence that the testator specifically wanted to revoke all of his prior wills no matter what happens, in other words, he intended to die intestate rather than resurrect a prior will. Here’s how the 2d DCA made this point:

In cases of undue influence, if a prior will is sufficiently similar to an invalidated will then the presumption arises but may be rebutted by evidence that “the revocation clause was not invalidated by undue influence and that it was not intended by the decedent to be conditional on the validity of the testamentary provisions” of the will. Wehrheim, 905 So.2d at 1009–10; cf. § 732.5165 (stating any part of a will procured by fraud, duress, mistake or undue influence is void, “but the remainder of the will not so procured shall be valid if it is not invalid for other reasons”).

Who bears the burden of proof?

In real life, who bears the burden of proof can determine the outcome of a case. So who bears the burden of proof in these cases? Depends. If a will’s set aside on undue influence grounds, it’s the party arguing against application of the DRR doctrine. Here’s why:

The Florida Probate Code clarifies that presumptions arising from undue influence “implement public policy” that justify shifting the entire burden of proof when a presumption arises. § 733.107(2), Fla. Stat. (2014) (“In any transaction or event to which the presumption of undue influence applies, the presumption implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301–90.304.”); see also Hack v. Janes, 878 So.2d 440, 443 (Fla. 5th DCA 2004) (“The 2002 amendment to section 733.107, adding subsection 2, was intended to incorporate sections 90.301–90.304 of the Florida Evidence Code, and require a shifting of the burden of proof after the presumption of undue influence arises in a will contest.”). Thus, the doctrine of dependent relative revocation, when applied in a case of undue influence, shifts the burden of proof to the parties opposing its application.

How “similar” does a prior will have to be?

But the DRR doctrine doesn’t make sense if a testator’s prior will bears no resemblance whatsoever to his invalidated will. In other words, it doesn’t make sense to presume a testator would want to resurrect a prior will if it’s antithetical to his last will. So how “similar” does a prior will have to be for the DRR doctrine to apply? Does it have to be identical, or close enough to arguably fit into a general pattern of testamentary intent? Depends on how narrowly or broadly you define the word “similar.” According to the 2d DCA, it should be defined broadly:

The discrete point of contention here is one of measurement. Somewhere in the conceptual space between “identical” and “antithetical” resides “similar,” and the parties disagree where its boundaries should be marked for this kind of case. One could draw the notion of sufficient similarity between wills broadly or narrowly. Florida courts have seldom expounded upon the issue, but in the context of undue influence we would incline toward a broader definition of similarity, one that takes into account the testamentary instruments themselves and any admissible evidence that may be relevant. We do so for several reasons. . . .

Keeping in mind that the requirement of sufficient similarity serves to ensure the indicia of the testator’s intent, any construction of similarity must necessarily account for the intrusion of another’s intentions in cases of undue influence. A broad construction of similarity does so. . . .

Indeed, to hold otherwise, to apply an overly strict or narrow construction of similarity, would likely consign the doctrine of dependent relative revocation to a minute corner of irrelevance for cases of undue influence. We see no reason to corral the presumption for this class of cases.

Case Study:

This case revolves around a woman who died at that age of 107 after having executed at least six wills: one in 1989, a second in 1991, a third in February 1992, a fourth in August 1992, a fifth in 1993, and a sixth in 1994. The last five wills provided for nominal preresiduary gifts then left the bulk of her multi-million dollar estate to four residuary devisees. In 2008 the trial court determined that three of the four residuary devisees were guilty of undue influence. The fourth residuary beneficiary was “Ms. Rocke,” the decedent’s second cousin. She last appeared as one of four residuary beneficiaries in the 1992 will. The trial court held the DRR doctrine didn’t apply, which meant the decedent was deemed to have died intestate.

OK, so tying together all the elements summarized above, the 2d DCA applied the following three-part test to this case, which is the same test we should all apply in any case involving multiple wills and allegations of undue influence (which is always):

[T]he proper analysis in this case on remand should have proceeded along the following sequence: (i) did Ms. Rocke establish sufficient similarity between Mrs. Murphy’s wills that would have given rise to the doctrine of dependent relative revocation; (ii) if so, were there sufficient record facts to overcome that presumption so that the 1994 will’s revocation clause [should be enforced]; and (iii) if not, if the presumption remained intact, which, if any, will or residuary devise in Mrs. Murphy’s prior wills reflected her true testamentary intention?

So how do you prove “similarity”? Think: “extrinsic” evidence.

The 2d DCA concluded all three prongs of the DRR doctrine cut in Ms. Rocke’s favor, meaning she ended up inheriting the bulk of the fortune at stake in this case. In arriving at its final holding, the 2d DCA “parted company” with the 5th DCA on an important evidentiary point. The 2d DCA concluded the trial court should have considered extrinsic evidence (which it had refused to do) when ruling upon the “similarity” of the wills at issue in this case, which is directly at odds with the 5th DCA’s ruling in Wehrheim:

But we must part company with the Fifth District insofar as Wehrheim would preclude a probate court from considering extrinsic evidence when deciding the doctrine’s applicability in claims involving undue influence. Wehrheim, 905 So.2d at 1008 (noting that a court “must confine its inquiry to the testamentary documents before it without resort to extrinsic evidence”). In determining whether testamentary instruments are sufficiently similar for purposes of the doctrine of dependent relative revocation, a court should always look first to the documents themselves. Brickell v. DiPietro, 145 Fla. 23, 198 So. 806, 810–11 (Fla.1940) (“It is the duty of the court to give effect to the intention of the testator where it can be ascertained and determined from the four corners of the will.”). However, in cases of undue influence, its analysis cannot simply end there.

If you’re involved in one of these cases, this point is crucial. It will shape the entire course of your litigation. Regardless of which side of the argument you end up on, you’ll want to know why the 2d DCA decided extrinsic evidence should be allowed:

We find no reason to erect a barrier between admissible evidence and the task of sifting similarities between wills that have been affected by undue influence. Rather, we join the courts of our sister states to hold that, in cases involving undue influence, a probate court is not confined to the testamentary documents when determining whether the doctrine of dependent relative revocation should apply. See Estate of Anderson, 56 Cal.App.4th 235, 247–49, 65 Cal.Rptr.2d 307 (Cal.Ct.App.1997) (observing that questions of ambiguity or revocation of a will permit consideration of extrinsic evidence; “[a]pplying these principles, we conclude that extrinsic evidence may be considered in determining whether Anderson conditioned the revocation of the first will on the exercise of the power of appointment in De Paul’s favor” (citing In re Kaufman’s Estate, 25 Cal.2d 854, 155 P.2d 831 (Cal.1945))); In re Estate of Anthony, 265 Minn. 382, 121 N.W.2d 772, 779 (Minn.1963) (remanding case to district court “to receive whatever extrinsic evidence of the testator’s intention may be available”). Upon a finding of undue influence, a probate court may consider any relevant, admissible evidence to decide if the testator intended a will’s revocation clause to be conditional upon the will’s efficacy.

So what’s the takeaway?

Far and away, the single most common line of attack in any will contest is undue influence. And in most of these cases there’s going to be at least one other will floating around that could conceivably get revived under the DRR doctrine. Which means the 2d DCA’s lengthy and detailed three-step analysis for how these cases should be litigated is a must read for Florida trusts and estates lawyers.

For those of us in the trenches, there’s another important — and scary —  lesson to be drawn from this extraordinary case. As I reported here, if your client legitimately wants to include you in his or her will — there’s a right way to go about handling that scenario. Do it the “wrong” way and a proud reputation you’ve worked a lifetime to build could be irrevocably stained by ugly accusations of self-dealing and bad faith. The decedent’s drafting lawyer had been practicing law in this state since 1951. As noted by the 2d DCA, after decades of good work, this case will sadly overshadow an otherwise “exemplary professional reputation.” It didn’t have to end this way.

We need not recount all of the probate court’s findings of undue influence—which were quite extensive—but would echo the court’s sense of puzzlement as to why Mr. ___, an esteemed lawyer and a former city councilman, FBI agent, and Army Air Corps veteran, succumbed to the temptation to pursue a pecuniary windfall at the expense of a frail and susceptible client. Sadly, the pall of this case cast a long shadow over an otherwise exemplary professional reputation. Cf. Fla. R. Prof. Conduct 4–1.8(c) (“A lawyer shall not … prepare on behalf of a client an instrument giving the lawyer … any substantial gift unless the lawyer … is related to the client.”). We make this observation not to impugn the memory of Mr. ___, who passed away in 2014, but to state this simple point: the repercussions from a single ethical lapse may carry far beyond a lawyer’s license to practice law.

I’m going to be one of the speakers at next week’s Probate Law 2015 Seminar. The organizers have put together a great program. If you’re able to attend, you should. It’ll be time well spent. For a link to the seminar registration form, click here.

Here’s the official seminar summary:

This seminar is intended to provide practitioners with real life insight in handling challenging issues that arise in the course of a Florida probate proceeding. Speakers will focus on dealing with digital assets and the impact of mobile device technology on probate practice, the effect of a party’s death during the course of litigation, and recent developments in the law governing attorneys’ fees and personal representative commissions. Other topics include a primer on statutory entitlements under the Florida Probate Code, a beginner’s field guide to jurisdictional issues in trust and estate proceedings, as well as a session on the complex probate issues that can arise when dealing with modern families. The seminar also includes the always popular probate case law, rules, and legislative update, along with a presentation on the ethical dilemmas faced by fiduciaries and probate practitioners.

Golden v. Jones, — So.3d —-, 2015 WL 5727788 (Fla. October 1, 2015)

A cause of action against a probate estate is private property that’s protected by the Fourteenth Amendment’s due process clause. Which means it can’t be taken away from you in a probate proceeding without notice. But what we mean by “notice” depends on what kind of creditor you are. If you’re a known or reasonably ascertainable creditor, than you’re entitled to direct, personal notice. Otherwise all you get is publication notice in a local newspaper (which in today’s world equals no notice as a practical matter). This distinction’s at the core of our supreme court’s ruling in this case:

In Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 489–91, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988), the United States Supreme Court held that where a creditor is known or reasonably ascertainable, that creditor’s claim may not be barred merely by publication of the notice to creditors. Noting that a claim against an estate is property subject to protection by the Fourteenth Amendment, the Supreme Court weighed the important state interests in regulating the timeliness of creditors’ claims against the rights of those creditors to have their intangible interests in property protected by the Fourteenth Amendment. Id. at 485, 108 S.Ct. 1340. The Supreme Court determined that where a time bar is self-executing—such as the two-year statute of repose in section 733.710—there is insufficient state action to implicate the Due Process Clause of the Fourteenth Amendment. Id. at 485–87, 108 S.Ct. 1340. However, where a time bar is triggered by legal proceedings—such as the limitations periods in section 733.702—there is sufficient state action to implicate the Due Process Clause. Id. at 487–88, 108 S.Ct. 1340. The Court thus concluded that where there is sufficient state action and a creditor is “known or ‘reasonably ascertainable,’ then the Due Process Clause requires that [the creditor] be given ‘[n]otice by mail or other means as certain to ensure actual notice.'” Id. at 491, 108 S.Ct. 1340 (quoting Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983)).

With this background in mind, the Florida Supreme Court put to rest a statutory-interpretation issue involving F.S. 733.702(1)’s 3-month filing deadline for creditor claims that’s been roiling the Florida Probate Bar for years, and was at the center of 4! appellate court decisions, 3 of which ruled one way (Morgenthau, Lubee and Souder) and 1 which went the other (Golden). Proving once again that nothing’s ever certain in litigation, our supreme court held that 3 of the 4 lower appellate courts got it wrong! The one court that got it right was the 4th DCA in Golden (is it really that hard to read the text of a simple probate statute and do what it says?). Anyway, here’s how the court summarized its ruling:

We have for review Golden v. Jones, 126 So.3d 390, 390 (Fla. 4th DCA 2013), in which the Fourth District Court of Appeal held “that if a known or reasonably ascertainable creditor is never served with a copy of the notice to creditors, the statute of limitations set forth in section 733.702(1), Florida Statutes, never begins to run and the creditor’s claim is timely if it is filed within two years of the decedent’s death.” The Fourth District certified that its decision is in direct conflict with the decisions of the First and Second District Courts of Appeal in Morgenthau v. Andzel, 26 So.3d 628 (Fla. 1st DCA 2009), and Lubee v. Adams, 77 So.3d 882 (Fla. 2d DCA 2012), which held that even a reasonably ascertainable creditor who was not served with a copy of the notice to creditors is required to file a claim within three months after the first publication of the notice, unless the creditor files a motion for an extension of time under section 733.702(3) within the two-year period of repose set forth in section 733.710. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

Because we conclude that the limitations periods prescribed in section 733.702(1) are not applicable to known or reasonably ascertainable creditors who are never served with a copy of the notice to creditors and that the claims of such creditors are timely if filed within two years of the decedent’s death under section 733.710, we approve the decision of the Fourth District in Golden and disapprove the decisions of the First and Second Districts in Morgenthau and Lubee.

So what’s the take away?

Bottom line, if you’re a known or reasonably ascertainable creditor who’s never been personally served with notice, you have up to 2 years to file your claim. And you don’t have to ask a probate judge to pretty please give you an extension to file your claim under the very tough standard found in F.S. 733.702(3), which only allows for extensions if you prove fraud, estoppel or insufficient notice.

Based on the Florida Supreme Court’s ruling in Golden, there’s now an even greater premium on being a known or reasonably ascertainable creditor vs. an unknown or conjectural creditor, which means we can expect the litigation focus to turn in that direction. And that’s exactly what happened in the Soriano case.

“Reasonably ascertainable” creditors vs. “conjectural” creditors. Guess which one you want to be.

Soriano v. Estate of Manes, — So.3d —-, 2015 WL 5965203 (Fla. 3d DCA October 14, 2015)

The U.S. Supreme Court’s drawn a clear distinction between the due process rights afforded to known or reasonably ascertainable probate creditors vs. unknown and conjectural creditors. Here’s how the 3d DCA summarized this point:

In Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) the United States Supreme Court . . . explained, it is not “unreasonable for the State to dispense with more certain notice to those beneficiaries whose interests are . . . conjectural . . .” Id. at 317. Years later, in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988), the Supreme Court . . . held . . . “[I]t is reasonable to dispense with actual notice to those with mere ‘conjectural’ claims.” Id. at 490. See also Strulowitz v. Cadle Co. II, 839 So.2d 876, 880 (Fla. 4th DCA 2003) (noting a “personal representative has no duty to speculate and conjecture that someone might possibly have a claim against the estate” (citing Jones, 609 So.2d at 102)).

If you’re a “conjectural” creditor who happened to miss the creditor notice buried in the back of your local newspaper that no one ever reads, you’re stuck with F.S. 733.702(1)’s 3-month filing deadline. And if you miss that very short window of opportunity, you’re stuck arguing fraud, estoppel or insufficient notice under F.S. 733.702(3) to hopefully get an extension to file your claim when you finally find out the guy who owes you money died. The extension argument’s a tough one to win under the best of circumstances. On the other hand, you could argue none of this applies to you because you were really a reasonably ascertainable creditor all along, which means you have up to 2 years to file your claim if no one ever got around to personally serving you with notice. That’s what the creditor in this case tried to do.

Case Study:

Four months after the estate’s “notice to creditors” was first published in a local newspaper (i.e., after F.S. 733.702(1)’s 3-month filing deadline), Ms. Soriano filed a creditor claim against the estate, alleging she had an unsecured claim “based upon an imminent private tort action against [the Decedent] stemming from a criminal charge he incurred on May 28, 2013 in Monroe County, Florida.” Attached to the statement of claim was a document entitled “Traffic/Criminal Case Detail Information” which showed that the Decedent had been charged with misdemeanor battery in June 2013, and that the State nolle prossed the criminal case on December 4, 2013 (a month following Decedent’s death).

Ms. Soriano asserted she was a reasonably ascertainable creditor who wasn’t personally served with a notice to creditors, thus absolving her from F.S. 733.702(1)’s 3-month filing deadline. Whether or not you’re a reasonably ascertainable creditor is an intensely fact-specific decision. So both sides filed supporting affidavits. The estate’s personal representative (PR), Ms. Manes, filed an affidavit claiming she’d done everything a PR’s supposed to do to find creditors, and she had no idea the claimant existed. According to the 3d DCA, in response:

Ms. Soriano filed three affidavits from the following individuals: (1) Luke Bovill, the prosecutor in the criminal case against the Decedent; (2) Elena Vigil–Farinas, the Decedent’s criminal defense attorney; and (3) Robert C. Stober, Ms. Soriano’s personal attorney. Bovill’s affidavit averred that the Decedent was represented by Jessica Reilley, Esq., and that Bovill was aware Ms. Soriano had retained personal counsel. Vigil–Farinas’ affidavit averred that the Decedent’s “wife contacted me and paid the retainer for [Decedent’s] criminal defense.” Finally, Stober’s affidavit averred that he “was retained by Ms. Soriano to assist her with a workplace battery” committed by Decedent and that, on or about November 13, 2013,3 he “spoke with Mr. Manes’ criminal defense attorney, Jessica Reilly, and advised Ms. Reilly of my representation of Ms. Soriano.”

So was this enough to save the day for this creditor? No. Here’s why: she couldn’t prove the PR ever had actual notice of her intent to sue the estate or that the PR wasn’t diligent in her search for creditors. Sure, maybe the PR could have guessed this claim was coming, but according to her testimony she didn’t, and that was enough to block the claimant.

There is nothing in the affidavits filed by Ms. Soriano to suggest that Ms. Manes, or Decedent’s criminal defense counsel, had any actual knowledge of Soriano’s civil claim against Decedent. Nor is there any evidence (or assertion in the affidavits) that a search more diligent than that conducted by Ms. Manes would have revealed the existence of Ms. Soriano’s claim. Neither Ms. Soriano nor her attorney placed Ms. Manes on notice of any such claim. In fact, the affidavits fail to contain an averment that Ms. Soriano or her attorney placed anyone on notice that she was pursuing, or intended to pursue, a civil claim against Decedent or his estate.

It is the absence of any such averment that distinguishes the instant case from the cases relied upon by Ms. Soriano. Compare, e.g., In re Estate of Ortolano, 766 So.2d 330 (Fla. 4th DCA 2000) (finding appellant was a reasonably ascertainable creditor where it was established that the personal representative had actual notice of the contingent creditor’s claim); Foster v. Cianci, 773 So.2d 1181 (Fla. 2d DCA 2000) (same).

The affidavits presented to the trial court failed to establish that Ms. Soriano was a reasonably ascertainable creditor and further failed to establish that Ms. Manes, following a diligent search, should reasonably have ascertained that Ms. Soriano had a claim or a potential claim. The trial court properly denied Ms. Soriano’s petition because, as a mere conjectural creditor, she was not entitled to personal service of the notice to creditors, her petition was untimely, and her asserted claim was barred by section 733.702(1), Florida Statutes.

Lesson learned?

Our supreme court’s ruling in Golden highlights again the preferential treatment afforded to known or reasonably ascertainable creditors. On the other hand, the 3d DCA’s ruling in Soriano reminds us that just because you think you’re a reasonably ascertainable creditor, doesn’t make it so. If you’re involved in one of these cases you’ll want to use Soriano as an evidentiary road map; which means these cases all boil down to two questions:

  1. Did the personal representative have actual knowledge of the probate creditor’s existence?
  2. Would a reasonably diligent search have revealed the probate creditor’s existence?

In Florida, inheritance disputes are decided by a jury of one: your judge. These cases are all bench trials, which has huge implications for litigants and the lawyers who advise them.

One obvious challenge for those of us making a living in Florida’s overworked and underfunded court system, is how do you help your judge make the best decisions possible under pressure-cooker conditions? For example, as I reported here, in Miami-Dade each of our probate judges was assigned an average of 3,069 new cases in FY 2013-14, and in Broward the figure was even higher at 3,899/judge. And as caseloads go up, court funding goes down, depriving our judges of the support most of us in private practice take for granted. The best strategies I’ve found for dealing with this particular challenge are summarized beautifully in Persuading a Cold Judge, a 2009 article published in the ABA’s Litigation magazine which I refer to all the time (and wrote about here).

Are Juries Really Such a Wildcard Compared with Judges?

Another fundamentally important issue to deal with in bench trials, which is less obvious but equally outcome determinative, are the unconscious biases that drive much of our decision making as human beings. Most studies investigating this kind of bias focus on the general public (which I’ve reported on here in the context of settlement negotiations). We now have research focusing specifically on judges, as reported in Are Juries Really Such a Wildcard Compared with Judges? Here’s an excerpt:

[A] growing body of research supports what many of us have always known—judges are people, too, and are subject to many of the same unconscious influences and decision-making shortcuts as jurors. Regardless of background, education, and occupation, we are all remarkably bad at understanding what influences us when we make decisions. . . . We think we know why we made certain decisions and what we relied on when doing so, but we often discount factors that had a larger impact on us than we thought. Judges are not immune to this either. Pertinent research on judicial decision making indicates that biases and errors occur both unconsciously and unintentionally.

When was your judge’s last snack break?

If you’re trying to schedule a contested hearing on a discrete issue (vs. a full blown trial), something as simple as when you get your hearing can have a huge impact on your chances of success. For example, this study found that the percentage of a judge’s favorable rulings appears directly linked to when she or he last ate. Here’s an excerpt from that study:

We test the common caricature of realism that justice is “what the judge ate for breakfast” in sequential parole decisions made by experienced judges. We record the judges’ two daily food breaks, which result in segmenting the deliberations of the day into three distinct “decision sessions.” We find that the percentage of favorable rulings drops gradually from ≈65% to nearly zero within each decision session and returns abruptly to ≈65% after a break.

Yes, judges are people too; so what’s to be done?

First, understand the problem. We’re not talking about intentional bias here. What we’re talking about are the factors affecting decision making that most of us are simply unaware of. The linked-to article does a good job of identifying the typical unconscious biases we’ll encounter in a courtroom. Yes, “who” your judge is matters (i.e., race, gender and background), but “how” his or her brain works is just as important. Our brains use a number of mental shortcuts, or “cognitive heuristics,” that help us make decisions more quickly and efficiently by operating in a matter of milliseconds, without our realizing that it is happening. Understanding how these mental shortcuts work, and what you need to do to make sure they’re working in a way that helps your judge do the best job possible, is crucial.

Second, be proactive, take steps to neutralize unconscious biases that hinder a judge from making thoughtful, well-reasoned decisions. The linked-to article provides a solid list of compensating strategies; here are my favorites:

Because external accountability can . . . increase deliberative processing, call attention to the fact that the decision will draw scrutiny, for example, through . . . appellate review. While risky, it could be effective if handled delicately.

On a more strategic level, use a narrative to tell a story in briefs, in opening statements, and through witness testimony. Having judges consider alternative explanations leads to more deliberative analysis, and simply attacking the adverse party’s story does not provide that alternative. Provide your own story that includes an alternative cause, motive, narrative, etc., so the judge has to consider both versions rather than just the strengths and weaknesses of only one.

An assessment of the judge’s inclination to tackle complex information can also help guide the complexity of the presentation. A judge who exhibits an inclination to make sure he or she understands complex evidence will inherently be more likely to make more deliberative decisions. However, if a judge is more prone to quick decisions, then counsel should make extra use of tools like simple visuals, decision trees, and tag lines to create a less effortful path to a favorable decision.

Bottom line, judges are people too. Understanding how they make decisions is crucially important in cases such as ours, where the same person is both judge and jury.

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As long as we’ve had probate courts, people have been trying to figure out how to avoid them. In common-law jurisdictions like Florida, the most common technique is to use non-probate assets that automatically transfer at death (known as the nonprobate revolution, it’s a trend that’s been accelerating for decades).

In civil-law jurisdictions (i.e., all of Latin America) and mixed civil-law jurisdictions (like Quebec, Louisiana and Puerto Rico), they’ve come up with another way to avoid probate, and it’s called the “notarial will.”

What’s a “notarial will”?

Civil-law notaries, or “Latin” notaries, act in a quasi-judicial capacity when they’re involved in the preparation and execution of a person’s will. Which means that once your will’s been authenticated by a civil-law notary, you usually don’t need a probate court to do it over again after you’ve died. Bottom line: no probate.

What makes notarial wills “tick” is the level of authority a notary’s vested with in most civil-law jurisdictions, as noted by the 3d DCA:

The main characteristic of a notarial will is the central role played by the civil law notary in supervising the creation of the will and permanently storing the will. When performing this task, the civil law notary is acting in a quasi-judicial capacity in a manner that has no counterpart in common law jurisdictions and which should not be confused with the ministerial functions of a common law notary public. See Thomas A. Thomas & David T. Smith, Florida Estates Practice Guide, § 7.04(5) (2015).

But for this system to work, the notary’s required by law to retain custody of the original document. Here’s how this point was explained in In Defense of Notarial Wills, an article discussing notarial wills in Quebec:

[The notary] is required by the notarial code to retain the original will in a vault having maximum fire proof standards, burglar and dampness resistance. Therefore, the original is always available and cannot become lost, destroyed or mislaid. . . . Certified copies may be obtained from the notary or the depositary of his records with no other formality. The original will is never delivered except upon Court order in unusual circumstances, e.g. as evidence when the validity of its execution is questioned.

Do notarial wills work in Florida?

So here’s the problem. In common-law jurisdictions like Florida a court usually won’t validate/probate your will unless the original’s been deposited with the court. Copies don’t work unless you overcome the very tough “lost will” presumption of revocation (see here). This common-law emphasis on original documentation creates a fundamental conflict with a civil-law notary’s duty to retain custody of original wills, again as noted in In Defense of Notarial Wills:

Since the common law requires production of the original document for probate, the two systems of law contradict. The original notarial will cannot remain in the notary’s repertoire as required by . . . law and also be delivered for probate elsewhere.

What to do? Follow the steps laid out in F.S. 733.205, Florida’s specifically designed mechanism for dealing with foreign notarial wills. The statute lets you use an authenticated copy of a foreign notarial will “if the original could have been admitted to probate in this state.” In other words, all this statutory fix is supposed to do is let us use copies to address a civil-law notary’s duty to retain custody of his original documents, it’s NOT supposed to lower the standard for what kind of will is otherwise valid in Florida. It’s this last point that’s at the heart of the 3d DCA’s ruling in this case.

Case Study

Malleiro v. Mori, — So.3d —-, 2015 WL 5714701 (Fla. 3d DCA September 30, 2015):

This case involves an Argentine notarial will that was apparently accepted as valid by an Argentinian court. The notarial will was typed up and signed by the notary, but it wasn’t signed by the testatrix or her witnesses, as explained by the 3d DCA:

The Testator orally pronounced her testamentary wishes to a notary who transcribed them. The Argentine will sets forth that the Testator made her attestations before the notary in the presence of three witnesses who were identified by name, address, and national identity card number. The Argentine will explains that the notary typed up the testamentary wishes and presented the typed document to the Testator, who declined to read it. The document was then read back to the Testator, who orally approved it in the presence of the witnesses. The notary signed and stamped the will, but the Testator and the witnesses did not sign it.

The Argentine will revoked a prior will singed in New York that favored a different group of beneficiaries. So which will’s valid matters. A few years after the Argentine will was created, the testatrix moved to Miami where she died owning property both in the U.S. and Argentina. The probate court in Miami ruled the Argentinian will was valid — even though it wasn’t signed by the testatrix.

The general rule in Florida is that we’ll accept the validity of a will created by a nonresident anywhere else on the planet, as long as one non-negotiable, bare minimum requirement is met: it’s signed by the testator. Under F.S. 732.502(2), oral (i.e., nuncupative) wills aren’t valid in Florida under any circumstances. And it doesn’t matter how strong the evidence is that the foreign will accurately reflects a person’s testamentary intent, or even if a court in another jurisdiction’s blessed it (as I reported here in a case involving an unwitnessed holographic will that was approved by court order in Colorado but rejected in Florida), if the will’s not signed, it’s not going to fly in Florida. But F.S. 732.502(2) shouldn’t be a problem for most notarial wills because the norm seems to be that these wills are always signed, as noted by the 3d DCA:

A treatise that surveyed the practices of different countries concerning notarial wills noted four stages commonly involved in the creation of a notarial will:

First, the testator makes an oral declaration of the will to the notary and two witnesses. Second, the notary (or an assistant) reduces the will to written form. Third, after being read aloud by the notary, the will is signed by testator, notary, and witnesses, with the notary adding information about the execution, including, usually, its date and place and the names of witnesses. Finally, the will is retained by the notary and, in some countries, registered in a central register.

1 Kenneth G.C. Reid, Marius J. de Wall & R. Zimmerman, Comparative Succession Law, Testamentary Formalities 449 (2011). Significantly, according to this treatise, the required third step in the creation of a notarial will is the signing of the will by the testator. Indeed, the treatise does not mention or acknowledge any type of notarial will that is not signed in some manner by the testator. Id.

Can a written will still be considered an invalid oral will?

Whether the Argentine notarial will at issue in this case is valid or not depends on whether a written will that’s not signed by the testator is still considered to be an invalid oral will. At the trial court level the argument seems to have been that since the will is in writing, it’s not an invalid oral will. The challengers argued that if it’s not signed, it’s an oral will — even if the will’s in writing. Here’s how this argument was reported by the DBR in Which Will Work? Court Chooses New York Version Over Argentina:

“This will certainly was reduced to writing, so it wouldn’t meet the definition of a nuncupative will,” said attorney Sergio Mendez, who represented the heirs under the second will. Mark Hasner, the attorney for the New York beneficiaries, disagreed.
“Florida law is clear that nuncupative wills are not admissible,” he said. “The testator never signed her Argentinean will and therefore it fits into the definition.”

By the way, Florida courts have dealt with this kind of mixed oral/written will argument in the past. A will can be in writing and still contain an invalid oral directive that’s unenforceable. See Estate of Corbin v. Sherman, 645 So.2d 39 (Fla. 1st DCA 1994). On the other hand, just because a will contains a reference to unstated oral instructions, doesn’t make it invalid, as the 3d DCA held in Glenn v. Roberts (see here). In this case the 3d DCA focused on the fact that the will wasn’t signed by the testatrix, ultimately ruling against it. Here’s why:

In one sense, every notarial will is nuncupative: it is orally pronounced by the testator to the notary. . . . Nevertheless, there would be no point to recognize foreign notarial wills in section 733.205 if they were all barred by the prohibition of nuncupative wills in section 732.502(2). We decline to interpret these provisions in a manner that renders one of them a nullity. . . . Instead, we hold that section 732.502(2)‘s prohibition of nuncupative wills does not bar all notarial wills, but does bar notarial wills that are unsigned by the testator. We reach this conclusion based upon the near universal emphasis in both foreign and domestic probate laws on the importance of the testator’s signature. This reading of the statute honors the policy of comity reflected in section 733.205 by recognizing the validity of most notarial wills, almost all of which are apparently signed by the testator according to the authorities disclosed by our research. It also honors the policy of limiting fraud and mistake reflected in section 732.502(1)‘s strict formalities for wills in general and 732 .502(2)‘s exclusion of nuncupative wills from acceptable foreign wills.

Think global, act local

Florida is a hub for international business and investment. Which means a lot of people own property in Florida, but reside and work in another state or country, frequently owning property in several jurisdictions. So it shouldn’t come as a surprise to anyone that multi-jurisdictional estates (be it the state-to-state or country-to-country variety) are a large part of our practice here in Florida. This case highlights what can go wrong when someone has a will prepared back home, and assumes it’ll automatically work in Florida too. It ain’t necessarily so. When in doubt, the safe bet is to simply sign a new will in Florida drafted by a Florida lawyer who knows what he’s doing. A little bit of collaboration with our non-U.S. brethren is probably a good idea too, as noted in a DBR report on this case entitled Which Will Work? Court Chooses New York Version Over Argentina:

Hasner said the opinion . . . underscored the importance of collaboration when it comes to estate planning for people like Isleno, who had property in two countries. “I think the big takeaway is estate planning lawyers need to have communication with the offshore planners as well,” he said.

By the way, if you’re looking for an easy way to meet top international attorneys (and just about anyone else who makes a living working with international estate planning clients), your best bet is to join your nearest STEP branch. I’ve been a member of the STEP Miami Branch for some time. If you have any interest whatsoever in international trusts and estates matters, STEP is where you want to be.

Bonus Material

A Florida Bar subcommittee was empaneled to study the legislative recommendations made by the 3d DCA in the Mori case. The subcommittee produced an excellent white paper that ultimately decided no legislative changes were necessary. If you want to make sense of the operative statutes, this white paper is gold.

The Florida Supreme Court’s Mediator Ethics Advisory Committee (MEAC) has been issuing formal advisory ethics opinions to certified and court-appointed mediators since 1994. MEAC opinions deal with mediation-related ethics questions governed primarily by Florida’s Rules for Certified and Court-Appointed Mediators.

I’ve found the MEAC opinions to be a valuable resource in my mediation practice, and would recommend them to anyone who professionally mediates in this state. To that end, below is my summary of the MEAC opinions for 2014. Each summary is hyper-linked to a copy of the original source document.

Opinion No. 2014-002

Summary: As is clearly stated in the civil, family, juvenile and appellate rules, a mediator may report only “agreement” or “no agreement” to the court without comment or recommendation. No descriptors or modifiers may be used in the mediator report. Note: MEAC 2014-002 rescinds MEAC 2012-009, Answer to Question One, and any other opinion in consistent with it. Citations: Rules of Civil Procedure 1.730(a) – (b); Rules of Juvenile Procedure 8.290(o)(2); Rules of Procedure 9.740(a); Rules of Procedure 12.740(f)(3) Sections 44.401-405, Florida Statutes; MEAC Opinions 2013-006, 2012-009, 2010-012 and 2010-007.

Opinion No. 2014-004

Summary: In the scenario presented, if conducting mediation in a language common to all parties and the mediator, it is inappropriate for a mediator to then memorialize any agreement reached in a language other than the one in which the mediation was conducted. Citations: Rules 10.340(d) and 10.410, MEAC Opinion 2011-017.

Opinion No. 2014-005

Summary: A mediator’s fee may never be based on the outcome of the mediation. Citations: Rules 10.340(d) and 10.410, MEAC Opinion 2011-017.

Opinion No. 2014-006

Summary: A mediator may not file a Notice of Mediation unless there is a court order referring the parties to mediation and the parties have selected that mediator or the parties have stipulated in writing to mediation and to that mediator in their case. Citations: Rule 10.520.

Opinion No. 2014-007

Summary: This opinion contains multiple questions regarding the confidentiality provisions of a Residential Mortgage Foreclosure Mediation Program (“RMFM Program”). The confidentiality of a court-ordered mediation begins when the order is issued by the court referring the parties to mediation. Whether subornation of perjury constitutes an exception to confidentiality under section 44.405, Florida Statutes, is a legal question and therefore the MEAC will refrain from responding to this inquiry. If one of the conditions for termination of the mediation set forth in rule 10.420(b) is present, a mediator is required to terminate the mediation. A mediator shall not report to the court or the RMFM Program Administrator directly, or indirectly, as to the cause for termination. Citations: Rules 10.310 and 10.420(b)(2)-(5), Sections 44.401-44.406, Florida Statutes, MEAC Opinion 2010-007.

Opinion No. 2014-008

Summary: Rule 10.420(a), Florida Rules for Certified and Court-Appointed Mediators, by use of the term “shall,” makes delivering an opening statement (orientation session), by a mediator, mandatory. Citation: Rules 10.200, 10.420(a) and (c), MQAP Opinion 1995-009.

Opinion No. 2014-009

Summary: A trainee observing a mediation to fulfill mentoring requirements for initial mediator certification may not serve in the dual capacities of trainee and language translator or interpreter. Citation: Section 44.403(2), Florida Statutes, In re: Procedures Governing Certification of Mediators, Fla. Admin. Order No. AOSC11-1 (January 10, 2011), MEAC Opinion 2011-017.

Opinion No. 2014-0010

Summary: If a mediator mediates a case pursuant to or governed by local rule 9019-2(C)(4)1 of the U.S. Bankruptcy Court for the Southern District of Florida, the mediator is accountable to the court in a manner consistent with the Florida Rules for Certified and Court-Appointed Mediators (see rules 10.500 and 10.520). If the parties wish to proceed after having being advised by the mediator in the orientation session of this federal court’s requirements regarding mediator disclosure to the court, there is no violation of mediator ethics. Citations: Rules 10.500, 10.520, Florida Rules for Certified and Court- Appointed Mediators, Section 44.405, Florida Statutes Local Rule 9019-2(C)(4), U.S. Bankruptcy Court for the Southern District of Florida MEAC Opinion 2012-005.

Opinion No. 2014-0011

Summary: MEAC notes a distinction between the filing of a notice of mediation with the court and notifying the parties in writing of the date, time, and specifics of a mediation. The Florida Rules for Certified and Court-Appointed Mediators and Florida procedural rules regarding mediation make mention of a mediator notifying parties but are silent as to whether a mediator may or may not file a notice of mediation with the court. The Committee is of the opinion that a mediator may not file a notice of mediation with the court unless the parties have agreed to use the mediator; the court has designated a mediation program which selects that mediator; or the court selects that mediator directly. Citations: Florida Rules for Certified and Court-Appointed Mediators, Florida Rules of Appellate Procedure 9.720, Florida Rules of Civil Procedure 1.700, Florida Family Law Rules of Civil Procedure 12.010 and 12.740-12.742, and Florida Rule of Juvenile Procedure 8.290.

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Michael J. Schlesinger of Schlesinger & Associates, PA in Miami was on the winning side of Sugar v. Estate of Stern, an interesting 3d DCA case I wrote about here involving a failed attempt to invalidate a settlement agreement based upon alleged oral statements made during the negotiations leading up to the signed contract.

I invited Mike to share some of the insights he drew from this case with the rest of us and he graciously agreed.

1. What strategic decisions did you make that were particularly outcome determinative on appeal?

Although the legal issues, the effect of a prior settlement and general releases, are not a difficult area to argue, the record in this case was tremendous.  It took me many hours to get my hands around it. I reviewed every single page to show that the positions being taken by the Appellee were totally inconsistent with the facts and prior orders of the court.   I had to convince the appellate court that settlement agreement(s) were final, that the general releases covered all known and unknown claims and that the opposing party’s position that the issue sought to be used to open up the settlement was unknown at the time of the settlement agreement and court approval of same, was simply not credible based upon the record.  So I then used the opposing parties and their counsel’s own filings made at the time of the settlement and compared them to the clearly contradictory position taken to the trial court below to show that the issues were being improperly re-litigated by the other side.

 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?

I did not argue the case to the trial court below but I did review the transcript and I cannot point to an issue that in hindsight should have been raised.  Moreover, if you review the transcript, it appeared that the trial court understood that the prior settlement was final and that the general release covered the alleged “new” claim.  But for some reason, the trial court found the exact opposite causing my clients to file the subject appeal.  As a footnote, the trial court granted my clients’ motion to recuse while the appeal was pending.

3. Any final words of wisdom for probate litigators of the world based on what you’ve learned in this case? 

This case was unique for me and very difficult to write the appeal.   My clients were behind the eight ball when I was retained.  The opposing counsel as well as the other parties wrongly, in my opinion, demonized my clients to the trial court and it was expected the same tactic would be used on the appeal.  However, I knew from experience in the Gil v. Hernandez II case, that the law on settlements in probate litigations seems to be very clear now in the 3rd DCA, that a general release will cover any known or unknown claims and in practice when drafting settlement agreements, it is incumbent of all practitioners in our field to spell out if any claims are “carved” out from the settlement.  Also, make sure you check every pleading or filing made by your opponent, as what they argue now may not be what they argued then.

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One of the big selling points for settling disputes is finality: you may not have gotten everything you wanted, but at least it’s over. Not so in this case. As noted by the 3d DCA, the four sisters involved in this “bitter, expensive, and divisive intra-family dispute” have been locked in heated litigation for years after presumably settling their claims not once — but twice — in two related settlement agreements, both executed in 2011. Ever since then they’ve been litigating over exactly what it was they agreed to!

I first wrote about this case in 2013. Then the issue was whether a settlement agreement could be “reformed” to correct a mutual drafting mistake (as I reported here, the 3d DCA said “yes,” it can). This time around the key issue was whether a settlement agreement can be re-written after the fact based on one side’s alleged oral misrepresentations and/or lack of full disclosure during the settlement negotiations leading up to the written contract.

Case Study

Sugar v. Estate of Stern, — So.3d —-, 2015 WL 5603469 (Fla. 3d DCA September 24, 2015)

In 2005 the decedent transferred approximately $350,000 from her account in Bank Leumi in Israel to the appellants’ family. Now fast forward to 2011; the decedent has been adjudicated incapacitated and three of her daughters (the appellees) are locked in litigation with the decedent’s fourth daughter and her husband (the appellants). Both sides accused the other of misappropriating mom’s funds. These accusations lead to litigation and the two settlement agreements at issue in this case.

According to the appellees, during settlement negotiations one of the appellants denied knowing anything about any Israeli account. Based in part on that oral representation the parties settled their disputes in 2011, exchanging mutual global releases/waivers. Bank Leumi didn’t release information about the $350,000 transfer until 2013. When this information came to light, the appellees apparently went through the roof. The appellants were hauled back into court, where they were ordered to “disgorge” the $350,000 transfer back to the estate because “they did not make a full disclosure.” Not so fast said the 3d DCA, reversing the disgorgement order on several grounds. The two I found most interesting are great real-life examples of what NOT to do when settling a case. Both boil down to one simple rule: GET IT IN WRITING!

Oral representations = NO evidence:

The final written settlement contract in this case stated it was “based upon the representations of the parties as of the date of the settlement,” but did NOT (a) incorporate those specific representations into the written agreement or (b) attach them or refer to separate writings detailing those representations. According to the 3d DCA, if you don’t get the specific representations in writing (e.g., there are no accounts in Israel), they’re meaningless. Why? Because you can’t use oral statements made during settlement negotiations as evidence. They’re privileged. Which means for litigation purposes, they basically don’t exist. So saith the 3d DCA:

[Oral representations made during settlement negotiations have] no apparent evidentiary foundation in a later attempt to avoid the settlement terms because of alleged misrepresentation. Statements during settlement negotiations concerning liability, the absence of liability, or value, are privileged and inadmissible in subsequent proceedings in the same case. § 90.408, Fla. Stat. (2014); see also Bern v. Camejo, 168 So.3d 232, 236 (Fla. 3d DCA 2014); Agan v. Katzman & Korr, P.A., 328 F.Supp.2d 1363, 1372 (S.D.Fla.2004).[FN6]

[FN6]: The common way to bar the attempted resurrection of alleged representations during settlement negotiations is the use of a merger/integration provision in a written settlement agreement.

By the way, the 3d DCA’s advice about incorporating integration clauses into our settlement contracts is good, but it doesn’t go far enough in my opinion. I’m also a big fan of including anti-reliance and anti-sandbagging clauses, both of which are explained in a great ACC slide presentation entitled Avoiding and Resolving Contract Conflicts – Integration Clauses.

“Fool me once, shame on you; fool me twice, shame on me.”

There’s no excuse for lying during settlement negotiations, but then again there’s also no excuse for getting duped again by not documenting the lie in your written contract. “Fool me once, shame on you; fool me twice, shame on me.” So saith the 3d DCA:

[A]fter the assertion of claims involving dishonesty, the claimant in negotiations culminating in a settlement and release cannot rely on oral representations made by the party already asserted to have been dishonest. Finn v. Prudential–Bache Sec., Inc., 821 F.2d 581, 586 (11th Cir.1984); Sutton v. Crane, 101 So.2d 823 (Fla. 2d DCA 1958); Columbus Hotel Corp. v.. Hotel Mgmt. Co., 156 So. 893 (Fla.1934). This is as simple as the adage, “fool me once, shame on you; fool me twice, shame on me,” but was expressed more eloquently by Justice Davis of the Supreme Court of Florida in Columbus Hotel Corp.:

And, where parties are given to understand that they are dealing at arm’s length in the compromise of an already existing controversy that itself comprehends charges of legal fraud, misconduct, and dishonest suppression of material facts, as was the situation with the parties now before this court in the instant proceeding, there arises no duty on the part of one of the antagonists to reveal his own peculiar situation to his adversary, on pain of being held liable for fraudulent concealment of facts if he does not do so.

156 So. at 902 (emphasis omitted).

“It ain’t over till it’s over.” – Yogi Berra

After all these years and two appellate decisions, it looks like this estate has yet to see its final day in court. As reported by the Daily Business Review in Fight Over Big Estate Draws Fire for Running Up Legal Fees, both sides are gearing up for continued litigation:

Sugar said Stern’s $12 million estate has dwindled to about $6 million on mounting legal fees and court costs.

“Hopefully this decision will bring finality and stop the bleeding of legal fees from what we thought were baseless claims,” said Sugar’s attorney, Michael Schlesinger of Schlesinger & Associates in Miami. . . . “It’s a shame that all these fees were paid out of the estate to challenge a settlement that was final in 2011.”

The Sugars won’t walk away without trying to recover that money.

Schlesinger said they’ll now turn their attention to forcing their in-laws’ attorneys to “disgorge the sizable legal fees and compensation paid to them.”

The three sisters, meanwhile, also aren’t likely to retreat. They are gearing to pursue litigation over taxes owed on funds in the Israeli account.

Stay tuned for more . . .