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Article X, section 4(c) of the Florida Constitution consists of two operative sentences, each of which deals with a totally distinct facet of Florida homestead law. The first governs restrictions on the devise of homestead property, which is an issue we deal with all the time as probate practitioners. Here’s what that sentence says:

The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.

The second operative sentence governs how married couples can mortgage their homestead property, which is an issue real estate attorneys deal with all the time; probate lawyers not so much. Here’s what that second sentence says:

The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse.

We run into trouble when the same homestead property gets tangled up in a dispute involving both of these constitutional protections (each of which is freighted with its own long and convoluted body of case law), which is what happened in the Feldman case.

Case Study

Feldman v. Schocket, — So.3d —-, 2022 WL 4360599 (Fla. 3d DCA September 21, 2022)

This case involved a $2+ million homestead property in the Florida Keys owned by a married woman. In 2015 she mortgaged the property twice. As explained by the 3d DCA, her husband signed two separate waivers to facilitate the mortgages:

Both mortgages contained identical waivers, providing, in relevant part: “Mortgagor, [husband], is joining in the execution of this mortgage for the sole purpose of waiving his or her homestead rights under Article X, Section 4 of the Florida Constitution, and shall not be bound by the terms, conditions or warranties contained in this instrument.”

The following year, in 2016, wife executed a will two days before her death containing an invalid devise of her homestead property.

After wife’s death surviving spouse executed a third waiver, which specifically referenced his testamentary homestead rights. The spousal waiver provided:

I, JEFFREY SCHOCKET, herby [sic] waive, any and all right, title, and interest I have in the property . . . . Specifically . . . any rights, title and/or interest that I may have to claim that the aforementioned property is exempt and/or excluded from my wife, Patricia M. Silver’s estate pursuant to Florida Statute §732.401 or Florida Statute §732.4015.

According to the surviving spouse, he “didn’t read the document” and “wasn’t aware of [his] rights or interest in the property at that time.”

When wife’s personal representative sought to take control of the homestead property surviving spouse objected, claiming the property for himself — in spite of his three signed homestead waivers. In an opinion that should be required reading for any probate practitioner navigating homestead issues (which is all of us), the 3d DCA ruled in favor of surviving spouse. He got the $2+ million house — in spite of his wife’s contrary will provisions and in spite of his three signed homestead waivers. Here’s why.

Is a homestead mortgage waiver the same as a homestead devise waiver? NO

Buried in the boilerplate of any mortgage on a Florida homestead property that’s owned by a married person is going to be some variation on the homestead waiver buried in the boilerplate of the two mortgages at issue in this case. Does that mean we should assume all homestead rights have been waived anytime homestead property’s mortgaged? Of course not.

If a waiver’s clearly intended only to facilitate a mortgage, it can’t be bootstrapped into a universal waiver of all spousal homestead rights. So saith the 3d DCA:

“In order to find that a survivor spouse has waived/relinquished homestead protection, evidence must demonstrate the survivor’s intent to waive the constitutional and statutory claim to homestead property.” Rutherford, 679 So. 2d at 331. In this context, waiver is statutorily circumscribed. …

[N]owhere do the mortgage waivers [in this case] reference the constitutional prohibition on devise in the event a decedent is survived by a spouse or minor child. Instead, by their plain language, the mortgage waivers were executed for a qualified purpose. Without [husband’s] signature, the mortgages would not constitute a valid lien on the property. See Pitts v. Pastore, 561 So. 2d 297, 301 (Fla. 2d DCA 1990). Thus, his signature was necessary to facilitate the constitutionally permissible purpose of “alienat[ing] the homestead by mortgage.” See art. X, § 4(c), Fla. Const.

Further, in Chames v. DeMayo, 972 So. 2d 850 (Fla. 2007), echoing the words of this court, Justice Cantero sagaciously cautioned against enforcing boilerplate homestead waivers buried within documents of other legal significance …

In this case, the qualified mortgage waivers were buried within documents of other legal significance. Under these circumstances, we conclude, as did the trial court, that the mortgage waivers are … insufficient to “evince an intent by [husband] to waive [his] homestead rights.” Rutherford, 679 So. 2d at 330.

Is a surviving spouse’s post-death waiver of invalidly devised homestead property legally enforceable? NO

OK, so the two mortgage-related waivers didn’t defeat surviving spouse’s claims to the homestead property. But what about the third waiver he signed, after his wife had died, which specifically referenced his testamentary homestead rights? Surely that sunk his claims? Nope. There are two reasons why this third waiver also failed.

First, F.S. 732.702 — the statute governing spousal waivers of testamentary homestead rights — does NOT apply post death. In other words, both spouses have to be alive for this kind of waiver to be legally enforceable. Because the third waiver in this case was signed after wife’s death, it’s not enforceable. So saith the 3d DCA:

[S]ection 732.702(1), Florida Statutes, anticipates that a party will contract with “a present or prospective spouse” or in anticipation of “separation, dissolution of marriage, or divorce.” The statute does not contemplate contracting with a deceased spouse. … [I]n placing their imprimatur upon waiver, courts have embraced the legal fiction that a waiver executed before or during marriage is the “legal equivalent of the prior death of the [spouse].” Jacobs v. Jacobs, 633 So. 2d 30, 32 (Fla. 5th DCA 1994) (quoting Wadsworth, 564 So. 2d at 635); see also In re Slawson’s Est., 41 So. 2d 324, 326 (Fla. 1949). This legal fiction removes the constitutional impediment to devising the homestead property. See Jacobs, 633 So. 2d at 32; Wadsworth, 564 So. 2d at 635. In the absence of a waiver, however, the property passes by operation of law to the surviving spouse upon the death of the decedent. See Rutherford, 679 So. 2d at 331. Here, because the mortgage waivers failed, Schocket’s property interest vested upon Silver’s death. Thus, the post-death spousal waiver was too little, too late.

Second, if homestead property’s invalidly devised, at the moment of death the property passes outside of probate and vests “in a twinkle of an eye” in the surviving spouse. So even if post-death homestead waivers under F.S. 732.702 were enforceable (they’re not), it doesn’t matter, what you’re really talking about at this stage of the game is a post-death disclaimer of an already inherited property right.

So if your post-death “fix” of a botched homestead devise involves the surviving spouse giving up his claims to the property, you need to make sure your deal complies with the strict requirements of F.S. 739.104(3) for a valid post-death disclaimer of inherited property rights. If you don’t nail these requirements, your deal’s going to unwind, as happened in this case. So saith the 3d DCA:

Feldman alternatively argues that the spousal waiver should be construed as a disclaimer. This argument fails on both procedural and substantive grounds.

Critically, the waiver is not statutorily compliant. It does not purport to be a disclaimer, it was not acknowledged before “a judge, clerk, or deputy clerk of any court; a United States commissioner or magistrate; or any notary public or civil-law notary of this state,” and it was not recorded. § 695.03(1), Fla. Stat.; see § 739.104(3), Fla. Stat.; § 695.26(1), Fla. Stat. (2022). The disclaimer statute makes no provision for partial compliance.

Notwithstanding these deficiencies, Feldman relies upon Youngelson v. Youngelson’s Estate, 114 So. 2d 642 (Fla. 3d DCA 1959), for the proposition that the spousal waiver is enforceable under our precedent. …

Although the holding in Youngelson remains undisturbed, the instant case is distinguishable. There was no post-death settlement here, and, perhaps more importantly, long after Youngelson was decided, the legislature exercised its prerogative to enact chapter 739 of the Florida Statutes. This statute now represents the exclusive means by which an individual may disclaim an interest in property. § 739.103, Fla. Stat. (2022) (“[T]his chapter is the exclusive means by which a disclaimer may be made under Florida law.”); see also Lee, 263 So. 3d at 827 (“The Florida legislature has codified the requirements for disclaimer of property in chapter 739, the Florida Uniform Disclaimer of Property Interests Act.”). Consequently, Youngelson cannot serve as a conduit for reviving a statutorily noncompliant disclaimer.

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In defending their work politicians often repeat a quote attributed to Otto von Bismarck: “If you like laws and sausages, you should never watch either one being made.”

Those words of wisdom apply with equal force to certain Florida trust legislation, as reported in a provocative Orlando Sentinel article entitled Florida leaders give more love to family trusts of the super-rich. (Full disclosure, I’m quoted in the article.) The article focuses on the following three changes to Florida’s trust laws:

  1. The 2020 adoption of new F.S. 736.08145 (HB 1089), a tax-planning provision involving irrevocable “grantor trusts”. I’ve previously written about this legislation.
  2. The 2022 amendment of F.S. 689.225 (HB 1001), which extends the maximum trust vesting period for most Florida trusts created on or after July 1, 2022, to 1,000 years. This legislation is all about luring more “dynasty trusts” to Florida.
  3. The 2022 adoption of new F.S. 662.1465 (SB 1304), which creates a public records exemption for court cases involving privately owned family trust companies. This last measure has received the most public attention, including opposition from the First Amendment Foundation.

If you make your living drafting trusts in Florida or advising the families that create them or litigating them in court, you’ll want to read this report. The back story on some of our trust legislation may not be pretty, but it’s certainly enlightening. Here’s an excerpt:

TALLAHASSEE — Florida has long been a tax haven, but new trust laws enacted over the past three years friendly to the heirs of the Walmart fortune and other families will make the state even more accommodating to the uber-rich looking to hide wealth and avoid taxes for generations to come.

The money at stake is astronomical.

The largest transfer of intergenerational wealth is about to occur over the next few decades, with an estimated $30 trillion to $68 trillion to be handed down, said Juan C. Antunez, a real estate and trust lawyer in Miami. With a maximum 40% tax on inherited wealth over $12.9 million, there is a potential loss of as much as $27 trillion in federal tax revenue.

“The jurisdictional competition among U.S. states to capture as much of that trust business as possible is fierce, and for the bankers and professionals who make a living working with those trusts the stakes are high,” Antunez said. “How high? Think billions of dollars.”

With these laws, Florida climbs up in the ranks of the dozen or so highly competitive states that are considered friendly to the trust industry, according to a study by the National Institute for Policy Studies. Currently, an estimated $5.6 trillion is held in trust and estate assets in the U.S.

“Trusts are one of the major mechanisms that ultra-high-net-worth families around the world use to cement their fortunes into hereditary wealth dynasties,” the study said. “One type of trust, the dynasty trust, is such a tool, as these trusts can last for centuries, or sometimes forever.”

Those enabling states have three common ingredients, the study said: Low or no taxes, secrecy and trust longevity. “These states pass laws to cut or abolish taxes or hide trust records from prying eyes,” the study said.


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The procedural ground rules governing probate and trust litigation are very different. A probate case is usually going to be governed by the Florida Probate Rules. And a trust case is usually going to be governed by the Florida Rules of Civil Procedure. This distinction can have profound implications for how these cases are litigated.

For example, once a probate proceeding is commenced your probate estate is subject to continuing judicial supervision, which means anytime a dispute pops up you don’t have to file a new lawsuit. Just file a motion in the existing court proceeding. You essentially have an open door to a judge who’s on standby to rule on whatever might come up for the duration of the entire probate proceeding.

Not so with trusts. If you want to trigger a court’s jurisdictional authority to rule on a dispute involving a trust, F.S. 736.0201(1) tells us that unless you fall under one of the explicitly identified statutory exceptions, your dispute needs to be plead in “a complaint,” and that complaint’s going to be “governed by the Florida Rules of Civil Procedure.” What this distinction means in real life is that once a specific trust dispute comes to its judicial end, your case is over. And your judge doesn’t remain on standby to rule on whatever new dispute might arise. In other words, trusts (unlike probate estates) are not subject to continuing judicial supervision.

What’s the problem?

Unfortunately, the very same statute that tells us trusts aren’t subject to continuing judicial supervision also tells us this rule doesn’t apply if the court orders otherwise. Here’s the key text of F.S. 736.0201(3):

A trust is not subject to continuing judicial supervision unless ordered by the court.

As a general rule, under the Florida Rules of Civil Procedure a judge can’t retain jurisdiction over your case once it’s concluded unless you — the litigant — ask her to. So what happens when there’s a direct conflict between a court order retaining continuous jurisdiction of your trust case under F.S. 736.0201(3), and a Florida Rule of Civil Procedure that simultaneously prohibits the court’s retained jurisdiction over the same case? That question’s at the heart of the Baden case, a must read for trust litigators.

Case Study

Baden v. Baden, — So.3d —-, 2018 WL 5932397 (Fla. 2d DCA November 14, 2018)

This case involved a mix of trust and non-trust claims, which is typical. The trust claims were settled and the court entered a partial final judgment accepting the parties’ settlement agreement and retaining jurisdiction over the trust. Here’s how the 2d DCA described the order:

All counts relating to the Trust in Mr. Baden’s operative complaint were resolved by the parties by a stipulated agreement reached in late 2014. … [T]he trial court accepted the parties’ stipulation in its entirety and rendered an order titled “Partial Final Judgment for Judicial Modification of the Baden Irrevocable Trust-2012.” The trial court concluded the partial final judgment with this statement: “The [c]ourt shall retain continuing jurisdiction to supervise the [Trust] pursuant to [section] 736.0201[, Florida Statutes, 2017].”

The plaintiff in this case was the trust’s settlor. Subsequent to settlement of the original trust-related claims the trustee and beneficiaries filed multiple motions asking the court to rule on new disputes related to the trust. No one filed a new lawsuit to do any of this or in any other way complied with the basic pleading requirements mandated by the Florida Rules of Civil Procedure.

In an apparent attempt to close this courthouse revolving door the trust’s settlor (the plaintiff in the case) filed a notice of voluntary dismissal of all of his remaining non-trust claims pursuant to Fla. R. Civ. P. 1.420(a)(1). That’s how civil cases are supposed to end. Did it work? Not according to the trial judge, as recounted by the 2d DCA:

In what seems to have been an attempt to extricate himself from further litigation in the case he initiated and is currently before us, Mr. Baden filed a notice of voluntary dismissal of the operative complaint’s remaining three counts … pursuant to Florida Rule of Civil Procedure 1.420(a)(1). But his attempt to voluntarily dismiss what was left in the case he initiated was to no avail. Specifically, the trial court entered a sua sponte order rejecting Mr. Baden’s notice of voluntary dismissal, ruling that it was a “legal nullity.” In rejecting Mr. Baden’s notice of voluntarily dismissal, the trial court … noted that it had retained jurisdiction pursuant to section 736.0201 to supervise the Trust in the partial final judgment … where the parties agreed to dismiss all of the Trust-related counts set forth in Mr. Baden’s operative complaint.

Does a voluntary dismissal of your trust case trump a standing court order retaining jurisdiction? YES

The 2d DCA quashed the trial court’s order. Why? Because under rule 1.420 a party’s right to voluntarily dismiss his own lawsuit is “almost absolute,” and it’s “jurisdictional.” As in, once this right is triggered the trial court’s jurisdictional authority is “instantaneously” divested. So saith the 2d DCA:

Our supreme court has determined that the effect of a plaintiff’s notice of voluntary dismissal “under rule 1.420(a) is jurisdictional,” Pino v. Bank of N.Y., 121 So.3d 23, 32 (Fla. 2013), and that the right to dismiss is “almost absolute,” Tobkin, 777 So.2d at 1163. The Pino court reasoned that a “voluntary dismissal serves to terminate the litigation, to instantaneously divest the court of its jurisdiction to enter or entertain further orders that would otherwise dispose of the case on the merits, and to preclude revival of the original action.” 121 So.3d at 32.

So if rule 1.420 applies to this case, the trial court was barred as a matter of law from continuing to involve itself in the trust’s affairs — no matter what it’s prior order said about retained jurisdiction.

And did rule 1.420 apply to this case? Yes. Why? Because F.S. 736.0201(1) tells us exactly when the Florida Rules of Civil Procedure do not apply to a trust case, and an order entered under F.S. 736.0201(3) is not one of those listed exceptions. Ergo: rule 1.420 applies to the case. And that means that when plaintiff filed his notice of voluntary dismissal under rule 1.420 the case was over and the trial judge’s authority over his trust ended — no matter what the trial court’s prior order said. So saith the 2d DCA:

The trial court … set forth an additional exception, separate from those enumerated by the legislature, to the mandatory application of the Florida Rules of Civil Procedure pursuant to section 736.0201. That is, the trial court ruled that it maintained jurisdiction over Mr. Baden’s operative complaint pursuant to subsection 736.0201(3), which states that “[a] trust is not subject to continuing judicial supervision unless ordered by the court.” (Emphasis added.) … We reject the notion that subsection (3) somehow renders inapplicable the legislature’s mandate that the Florida Rules of Civil Procedure “shall” apply in this context. … It would render subsection (1), where the legislature explicitly identifies the three exceptions, wholly superfluous if we interpret subsection (3) in isolation, as the daughters suggest.

Subsection (3) merely provides the trial court the discretion to continue supervision of a trust. It does not, and cannot, nullify subsection (1)’s mandate as to the applicability of the Florida Rules of Civil Procedure. This would make little sense. As we explained earlier, if a statutory provision “appears to have a clear meaning in isolation, ‘but when given that meaning is inconsistent with other parts of the same statute or others in pari materia,'” we must examine “the entire act and those in pari materia in order to ascertain the overall legislative intent.” … Reading these subsections of the same statute together so as to not render subsection (1)’s enumerated exceptions as superfluous, as we must, yields the conclusion that section 736.0201(3) does not provide a means for the trial court to sidestep section 736.0201(1)’s mandate that the Florida Rules of Civil Procedure section “shall” apply. …

Is retained jurisdiction in trust actions never allowed? NO

So can a trial court never retain ongoing jurisdiction over a trust? No. But when the trial court does reserve such jurisdiction it has to be done in a way that doesn’t run afoul of the Florida Rules of Civil Procedure (unless your case falls into one of the exceptions spelled out in F.S. 736.0201(1)). The 2d DCA provided the following example of when that might happen:

One scenario in which a trust case would presumably be permitted to remain open, assuming court approval, would be when a trustee initially seeks instruction of the court pursuant to section 736.0201(4)(e) (“A judicial proceeding involving a trust may relate to the validity, administration, or distribution of trust, including proceedings to … (e) … instruct trustees ….”) and also requests that the case remain open in anticipation of issues likely to arise in the short or medium term.

What’s the takeaway?

First, if anyone with a stake in the Baden trust wanted to trigger the court’s jurisdictional authority to rule on any new dispute or question involving the trust there are multiple ways to do that the right way in accordance with the Florida Rules of Civil Procedure. (All of those options would have been infinitely cheaper and quicker than litigating an appeal.) What you can’t do is simply file a motion in a preexisting lawsuit and ask the court to rule on whatever new dispute arises. So saith the 2d DCA:

And section 736.0201(3) certainly does not permit the daughters or the trustee to keep Mr. Baden’s lawsuit pending so that the trustee may file claims, motions for guidance, and so on. Of course, the legislature has provided an avenue for a party to the trust to file his or her own separate action consistent with the Florida Trust Code. See generally § 736.0201(4). But that is not the case before us.

Second, trust litigation has been heavily codified by Florida’s Trust Code. If you find yourself litigating how a trust case should play out (as in this case), you’re best bet is to stick as closely as possible to the statute vs. relying on general common law arguments. And if the controlling statute seems to be self-contradictory (as in this case), the side that figures out a reading of the statute that somehow makes the apparent self-contradiction go away (as in this case), is likely going to prevail (as in this case).


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If you make your living in and around our probate courts you’ll find the FY 2020-21 Probate Court Statistical Reference Guide interesting reading.

Probate court filings increased state-wide by approximately 50% over the last 10 years, which is more than twice Florida’s general population growth rate for this same time period. I don’t know what’s driving this spike, but I suspect it may have something to do with the disproportionate growth in Florida’s senior population.

Source: FY 2020-21 Probate Court Statistical Reference Guide 6-1

A little over 1 out of every 5 circuit court filings in Florida happen in one of our probate divisions (21.3%). That’s a lot of work for probate lawyers. Perhaps not surprisingly, the Real Property, Probate and Trust Law Section is the largest section of The Florida Bar.

Source: FY 2020-21 Statistical Reference Guide 2-5

By the way, it may come as a surprise to learn that only about half (49.8%) of the workload of your average probate court is dedicated to “probate” proceedings. And in some circuits it’s less than half. For example, in Broward the number of Baker Act filings (5,772) exceeded the number of probate filings (4,699). And here’s another somewhat surprising finding: “guardianship” and “trust” matters — which loom large in most practitioner conferences and publications — are a tiny sliver of the cases actually filed.

Source: FY 2020-21 Probate Court Statistical Reference Guide 6-3

How busy are our probate judges?

This chart is my creation. The goal is to get a sense of how busy our probate judges are by taking the “cases filed” data reported in the FY 2020-21 Probate Court Statistical Reference Guide 6-4 for three of Florida’s largest circuits/counties — (Miami-Dade (11th Cir), Broward (17th Cir), and Palm Beach (15th Cir) — and dividing those figures by the total number of dedicated probate judges for each of these circuits as reported in the FY 2020-21 Overall Statistics 2-2 page.

Type of CaseMiami-Dade (11th Cir)Broward (17th Cir)Palm Beach (15th Cir)
Probate5,123 4,699 5,368
Baker Act4,634  5,772 2,744
Substance Abuse768 828 686
Other Social Cases2,173365 255
Guardianship907 523 580
Trusts47 77 155
Total FY 2020-2113,652 12,264 9,788
Probate Judges
FY 2020-21
3.93.03.0
Total/Judge3,5014,0883,263 

What’s it all mean?

In Miami-Dade – on average – each probate judge took on 3,501 new cases in FY 2020-21, while in Broward the average was significantly higher at 4,088/judge, and in Palm Beach it was the lowest at 3,263/judge. Keep in mind these figures don’t take into account each probate judge’s existing case load or other administrative duties.

These caseload figures may be appropriate for uncontested proceedings, but when it comes to that small % of contested estate matters that are litigated these numbers (confirmed by personal experience) make two points glaringly clear to me.

First: “privatize” the dispute-resolution process whenever possible:

We aren’t doing our jobs as planners if we don’t anticipate — and plan accordingly for — the structural limitations inherent to an overworked and underfunded public court system. One important aspect of that kind of planning should be opting out of the public dispute-resolution system (our courts) and into a private dispute-resolution mechanism (arbitration) whenever possible. And how do you do that? Include mandatory arbitration clauses in all of your wills and trusts. These clauses are enforceable by statute in Florida. I’m a big fan of this approach (see here, here, here, here).

Here’s how the authors of the ACTEC Arbitration Task Force Report described the “structural limitations” argument for privatizing estate disputes:

What is now a choice to agree to arbitrate or to require arbitration may become a practical necessity. To have this vision one need only look to one’s own jurisdiction and the yearly budget disputes between governors and legislatures as they make difficult spending choices. The “third branch of government” is not an uncommon target. Within that debate, social and political considerations mandate that our leaders use their limited resources to fund criminal, juvenile, and family justice long before they reach estates and trusts. As judicial resources dwindle or shift to a more pressing use, it is apodictic that already slothful judicial resolutions of trust and estate litigation will slow even further. In jurisdictions with competent, up to date jurists, we see constant outsourcing of trials to retired judges and magistrates with more time on their hands. And, of course, the competent, up to date jurist will eventually retire.

Second: help our judges do the good job they want to do:

We aren’t doing our jobs as litigators if we don’t anticipate — and plan accordingly for — the “cold judge” factor; which needs to be weighed heavily every time you ask a court system designed to handle uncontested proceedings on a mass-production basis to adjudicate a complex dispute or basically rule on any technically demanding issue that can’t be disposed of in the few minutes allotted to the average court hearing.

And how do you do plan for the “cold judge” factor? Read Persuading a Cold Judge. Here’s an excerpt:

Begin at the beginning. In every court appearance, there are six basic queries to answer for a judge:

  1. Who are you?
  2. Who is with you, and whom are you representing?
  3. What is the controversy, in one sentence?
  4. Why are you here today?
  5. What outcome or relief do you want?
  6. Why should you get it?

This last query is most often forgotten. Indeed, these six essential queries are a good beginning even when you are dealing with a warm judge. Consider putting them on a PowerPoint slide, a handout in the form of an “executive summary,” or a demonstrative exhibit to project through Elmo or other presentation technology.

A judge in a suburban district told me that the one thing I could do to assist his judging was to begin succinctly by telling him what was before the court, remind him of the nature of the case, and tell him what action I wanted the court to take and why I thought I had the right to that action. Once I did this for him, he would be ready to listen to my argument. This particular judge told me that he has so many cases that he can’t read the motions before the hearing, and if he has read them, it was so long ago that he couldn’t recall what he’d read. He has no legal assistant to write memos for him; he does his own legal research, and if you cited more than 10 cases for him to read, he couldn’t do it. He likes being a judge and wants to do the best job he can, but he is forced to come into hearings and trials cold. So, help him be the good judge he wants to be and the quality of his decisions will be your reward.


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There have been numerous books and essays written about Mark Twain’s final two unhappy years in Redding, Connecticut, as well as several accounts capturing the lives, also generally tragic, of his surviving daughter and granddaughter.

A fascinating article co-authored by Connecticut judge Henry S. Cohn and attorney Adam J. Tarr entitled A Challenging Inheritance: The Fate of Mark Twain’s Will, retells some of that story, but from a legal perspective probate attorneys should find particularly interesting. The article makes use of source documents from the estates of Mark Twain and his descendants, including original wills, probate papers, trust instruments, and court and business filings.

By the way, another source with direct links to Mark Twain’s will and probate file (with annotated commentary) is an excellent 2010 NYT’s article entitled Twain’s Heavily Lawyered Last Words that’s well worth diving into.

Over a century after his death, Mark Twain still matters. On that note, A Challenging Inheritance: The Fate of Mark Twain’s Will concludes by explaining how the literary “Mark Twain” has succeeded in the twenty-first century, well beyond his death in 1910. Good stuff, highly recommended. Here’s an excerpt:

The last years of Mark Twain’s life were marked with tragedy and emotional hurt. He lost his favorite daughter in 1896, his wife in 1904, and his youngest daughter Jean on Christmas Eve 1909, just four months before his death. Mark Twain’s will, which was written in August 1909 just before his health worsened, captures this emotional state of affairs.

Even though the provisions of Twain’s will and Clara’s subsequent bequests were illustrative of familial grief, Mark Twain’s investments and accumulated assets were a positive factor and only grew over time. While even in death some of his investments were deemed worthless, the trustees under Twain’s will and the Mark Twain Foundation achieved many financial triumphs. Further, thanks to the Papers Project, the Mark Twain literary “brand” has been glowingly successful. Writing in the April 17, 1960 Hartford Courant, Bissell Brooke declared: “Mark Twain again has caught the public’s fancy. Posthumously, he has never been more ‘alive.'”


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I’m a lifer. After more than two decades in the trenches, it’s safe to say lawyering isn’t a passing phase for me. And where I make my living is in our civil court system; mostly before probate judges, but not always. Which means I’m personally vested in a civil court system that doesn’t just measure outcomes, it also values “how” disputes get resolved.

And by “how” I mean the human interactions that go into doing what we do as lawyers. So what have I learned? Civility matters. And it’s not just me that says so. For a deep dive into what should be self-evident you’ll want to read Change the Culture, Change the System. Here’s an excerpt:

Judge Paul M. Warner, a U.S. magistrate judge in the District of Utah, recently wrote Ten Tips on Civility and Professionalism. He notes “It’s a long road without a turn in it. Put another way, what goes around, comes around. This is the best reason for civility.” He also suggests that incivility almost always results in wasted resources, in terms of both time and money—for lawyers, clients, and the court. Warner proposes a new Golden Rule of Civility:

“Be courteous to everyone, even to those who are rude. Not because they are ladies or gentleman, but because you are one.” It’s not about an eye for an eye, a tooth for a tooth. It’s not even about you. It is about doing what’s best for your client. In conclusion, civility is the mark of a real professional and a true lawyer. It is not about quid pro quo. It is about having self-respect, respect for others, and the self-confidence to not respond in kind, and in the process, continuing to build your own character, credibility, and reputation.

Bottom line, if you think “civility” is important, act accordingly — even if opposing counsel (or your judge) doesn’t reciprocate. It’s not a sign of weakness; it’s called maturity. And it’s what’s going to sustain us long after the “Rambo” litigator we’re dealing with in today’s case burns out or gets disbarred.

There’s another important point the authors make in Change the Culture, Change the System. If you’re a litigator, it’s easy to blame our judges for all that ails us. And if you’re a judge, blaming the lawyers is just as easy. Finger pointing is a lose-lose proposition. You want change? Take responsibility for your own actions and remember why we’re all here to begin with.

Lawyers may blame the system, the rules, the judge, and the court staff for unfairness, expense, and delay. Judges blame the rules, the lawyers, and the lack of staffing. That effort to shift blame is itself an indication of an unwillingness to take responsibility for making the system work in a cost- effective, procedurally fair way.

How the system functions is the result of how the actors within a particular case comport themselves. Those who are engaged in finger pointing are seldom visionary, innovative, and proactive. Both lawyers and judges need to remember that the system serves the litigants, who care little about the rules or case management principles; rather, they care about procedural fairness and cost-effectiveness. Lawyers and judges need to recognize the importance of procedural fairness for litigants and make it a guiding star throughout the process.

Bonus Material

I was so impressed with Judge Warner’s Ten Tips on Civility and Professionalism, I decided to list them all below. Good stuff, very much worth holding on to.

  1. It’s a long road without a turn in it. Put another way, what goes around, comes around. This is the best reason for civility. Everyone needs a little extra consideration from opposing counsel occasionally. If it doesn’t prejudice your case or client, do it.
  2. Don’t be so concerned with winning the battle that you lose the war. In other words, sometimes lawyers can’t see the forest for the trees. Just because the other side wants it, doesn’t mean your automatic response should be to oppose it. Sometimes, it can be win-win, especially for settlement purposes. This is especially true in civil discovery disputes.
  3. Civil practitioners treat each other in a criminal manner, and criminal practitioners treat each other in a civil manner. The criminal bar is small, and the lawyers know they will deal with each other many times. It leads to courtesy and civility. Civil practitioners may only deal with opposing counsel one time in a career. Be civil anyway. Your reputation depends on it.
  4. Never mistake reasonableness for weakness. The really good lawyers can be tough as nails on the issues and zealous in their advocacy, and yet always remain civil and courteous. Strive to be one.
  5. When laws are not enforced, it creates contempt for the law. When rules are not enforced, it has the same effect. The rules of civil procedure and local court rules are not advisory. They need to be followed. They give order and predictability to the system, and they should be enforced by the courts.
  6. Waste not, want not. Incivility, and the behaviors that constitute it, almost always result in wasted resources of time and money — the lawyer’s time, the client’s money, and both time and money for the courts. Lawyers responsible for such waste should pay for it, personally!
  7. Know the difference between an adversary and an enemy. The lawyer on the other side is not your enemy. The clients may be “enemies,” but the opposing counsel should not be. Opposing counsel may even be your friend, or, if treated with civility and professionalism during the conduct of the case, may well become one.
  8. If you don’t write it or say it, you don’t have to explain it. There is power in the written word. “Poison pen” e-mails and letters feel good to write, but rarely should be sent. Outrageous language and accusations in briefs and memoranda are the functional equivalent of shouting in court. Don’t dignify such boorish behaviors by responding to them.
  9. Always forgive your enemies, but never forget their names. Don’t make the case personal between you and opposing counsel. Never make the mistake of getting opposing counsel’s “attention” through shoddy behavior or cheap shots. They will work nights and weekends to beat you. They are not in this business because they lack ego.
  10. The Golden Rule, with a twist. We all know the Golden Rule. “Do unto others….” I propose a new Golden Rule of Civility. “Be courteous to everyone, even to those who are rude. Not because they are ladies or gentlemen, but because you are one.” It’s not about an eye for an eye, a tooth for a tooth. It’s not even about you. It is about doing what’s best for your client.

In conclusion, civility is the mark of a real professional, and a true lawyer. It is not about quid pro quo. It is about having self-respect, respect for others, and the self-confidence to not respond in kind, and in the process, continuing to build your own character, credibility, and reputation.


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The vast majority of cases settle. Whether those settlements are on balance a “good deal” can always be questioned after the fact, potentially subjecting personal representatives to liability. To shield against this risk personal representatives commonly condition settlements of creditor claims on prior court approval pursuant to F.S. 733.708, which “relieve[s] the personal representative of liability or responsibility for the compromise.”

Can a probate judge retain jurisdiction to enforce a settlement? YES

But just because your probate judge “approves” your settlement agreement doesn’t mean she can also “enforce” it. If you want the same judge who approved your settlement to enforce it — your order needs to say so. As explained in Enforcement of Settlements: A Jurisdictional Perspective:

To enforce a settlement is to assert a claim upon a new contract — the settlement agreement — which did not exist at the time the court’s jurisdiction was initially invoked when the complaint was filed. The question of whether enforcement of a settlement agreement required the filing of an independent action, coupled with the effect of dismissal or entry of judgment following the settlement, gave rise to a jurisdictional quandary. …

The [Paulucci v. General Dynamics Corp., 842 So. 2d 797 (Fla. 2003)] opinion resolved virtually all of the conflicts that had previously plagued the lower courts. To be enforced via motion in the same proceeding post-judgment or post-dismissal, a settlement must be approved by the trial court or incorporated into an order or judgment and jurisdiction to enforce the agreement must be retained. However, enforcement of such a settlement in the same proceeding is limited to the specified terms set forth in the agreement; a claim for general damages resulting from a breach of the settlement contract requires a separate action. If, after the settlement, the parties merely voluntarily dismiss the case without an order, the trial court is divested of jurisdiction and a separate case is required to enforce the terms of the settlement. These general principles have been diligently followed in various decisions entered subsequent to Paulucci.

Must a probate judge enforce a settlement? NO

On the other hand, there can be perfectly valid reasons for not wanting to litigate your settlement agreement before the same judge who presided over the underlying lawsuit. In those cases you can skip the approval order altogether and simply voluntarily dismiss your case pursuant to Fla. R. Civ. P. 1.420(a) or, if the other side insists on an approval order,  you’ll want to make sure the order doesn’t retain jurisdiction to enforce the settlement agreement. And if the other side tries to get your settlement agreement enforced by the same judge nonetheless, you need to affirmatively object on jurisdictional grounds and cite to Paulucci at the first available opportunity — or risk waiving this defense.

Here again from Enforcement of Settlements: A Jurisdictional Perspective:

In MCR Funding v. CMG Funding Corp., 771 So. 2d 32 (Fla. 4th DCA 2000), the Fourth District addressed the circumstance where, following a settlement, the parties simply filed a voluntary dismissal without an order of the court. The Fourth District found that the “voluntary dismissal terminated the trial court’s ‘case’ jurisdiction,” which is the “power of the court over a particular case that is within its subject matter jurisdiction.” However, because case jurisdiction differs from subject matter jurisdiction, the Fourth District found that the failure to object to enforcement of the settlement by motion constituted a waiver of such an objection.

Case Study 

Pulte v. New Common School Foundation, — So.3d —-, 2022 WL 257457 (Fla. 2d DCA January 28, 2022)

In this case a charity filed creditor claims against an estate seeking to enforce the decedent’s charitable donations and guaranteed loans totaling millions of dollars. The estate objected. Before an independent action was filed by the creditor the parties negotiated what was, in effect, a pre-suit settlement of all claims. The probate court then entered an order approving the settlement pursuant to F.S. 733.708, which the 2d DCA described as follows:

The probate court entered an order (the Approval Order) finding the Agreement in the best interest of the Estate and its interested persons and authorizing the Personal Representative to enter into it. The Approval Order neither incorporated the Agreement nor reserved jurisdiction to enforce the Agreement.

Shortly thereafter post-settlement disputes broke out. The creditor then filed a motion in the probate proceeding to enforce the settlement agreement. The estate contested this motion, but never objected to the probate court’s lack of jurisdiction. The probate court then entered an order siding with the creditor, which the estate appealed.

Did the probate judge retain jurisdiction to enforce the settlement? NO

On appeal the estate argued for the first time that the probate court lacked jurisdiction to enforce the settlement. Here’s how this argument was framed by the estate, which the 2d DCA had no trouble accepting:

On appeal, the Personal Representative argues, among other things, that reversal is warranted pursuant to Paulucci v. General Dynamics Corp., 842 So. 2d 797, 799 (Fla. 2003). In that case, the supreme court held that “a court has jurisdiction to enforce a settlement agreement where the court has either incorporated the agreement into a final judgment or approved the agreement by order and retained jurisdiction to enforce it[s] terms.” Id. The Personal Representative argues that because the probate court neither incorporated the Agreement into a final judgment nor retained jurisdiction to enforce its terms, the court lacked jurisdiction to enforce the Agreement; rather, the Foundation should have sought enforcement through a separately filed civil suit.

Did the estate waive this defense? NO

The more interesting question on appeal was whether the estate had waived its objection to the probate court’s lack of jurisdiction by waiting until after the court had ruled against it to make this argument for the first time on appeal. I think we can all agree there’s a certain you-can’t-have-your-cake-and-eat-it-too appeal to the waiver argument. And as pointed out by the 2d DCA, there is some authority for the waiver argument:

But see MCR Funding v. CMG Funding Corp., 771 So. 2d 32, 35–36 & n.2 (Fla. 4th DCA 2000) (concluding that MCR had waived its challenge to the trial court’s continuing jurisdiction to enforce the parties’ settlement agreement by failing to object in the trial court and by asking court to decide the dispute over the agreement; certifying conflict with 84 Lumber Co., 656 So. 2d at 1297).

Lucky for the estate the 2d DCA felt bound by its precedent, ruling against waiver — but also recognizing the continued split in authority among our appellate courts on this issue.

[O]ur precedent dictates that the Personal Representative did not waive this jurisdictional challenge by failing to raise it below. … We therefore reverse and remand for the probate court to vacate its order granting the Foundation’s enforcement motion and to dismiss the motion for lack of jurisdiction. We also certify conflict with the Fourth District’s decision in MCR Funding, 771 So. 2d at 35–36 & n.2.

What’s the takeaway?

Our clients aren’t entitled to perfect decisions, but they are entitled to considered decisions. If you’re settling a case and someone pulls out a form agreement that says the parties are agreeing to the trial court’s retained jurisdiction to enforce the settlement — stop and consider what that means. Boilerplate contract clauses mean nothing if the trial court doesn’t enter an order both approving the settlement and retaining jurisdiction to enforce it.

On the other hand, if you’ve weighed the pros and cons of litigating your settlement in a separate stand-alone lawsuit and concluded that’s the best option — stop and consider what that means. You can’t have an order retaining jurisdiction of the settlement. And if you want to ensure this defense isn’t waived if tested, you can’t sit on your hands if the other side tries to sidestep filing a new stand-alone lawsuit and opts to simply file a motion to enforce in the existing underlying case. You need to affirmatively object on jurisdictional grounds and cite to Paulucci at the first available opportunity.


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If you spend any time writing or reading legal briefs, it won’t take  long to notice that practitioners are all over the place when it comes to citation methods. This lack of attention to detail doesn’t reflect well on the writer, and makes it harder for the reader to follow your argument. (By the way, I’m as guilty of this sloppiness as anyone else.)

If you’re looking for an easy to use on-line resource to get your citations right (and who isn’t!?), your best bet is the Florida Style Manual, published by the Florida State Law Review. Here’s an excerpt from the introduction:

The Florida Style Manual is designed to aid practitioners and scholars to identify the proper citation form for legal documents and scholarly articles. The Manual supplements the uniform citation system for Florida legal documents contained in Florida Rule of Appellate Procedure 9.800 and the standard citation authority for American legal journals, the 20th Edition of The Bluebook: A Uniform System of Citation. The Manual is an outgrowth of the Florida State University Law Review’s annual Review of Florida Legislation. From the conception of that project, the editors realized that citation to many Florida-specific sources—particularly those generated by the Florida Legislature—would lead to confusion if conventional Bluebook citation forms were followed. Other Florida sources were not addressed at all by the Bluebook. This Florida Style Manual provides meaningful citation forms for Florida-specific materials.

And for those of us who like charts, the Manual delivers on that front as well.

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Note to self: Make yourself look good, use this Manual.


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The largest inter-generational wealth transfer in history will pass over $30 trillion in inheritance over the next few decades (others estimate the number will be more like $41 trillion or $68 trillion; whatever it is, it’s going to be a lot). Much of that wealth will end up in someone’s trust fund.

The jurisdictional competition among U.S. states to capture as much of that trust business as possible is fierce, and for the bankers and professionals who make a living working with those trusts the stakes are high. How high? Think billions of dollars.

For example, in 2001 Florida made dynasty trusts possible in this state by effectively abolishing the rule against perpetuities (RAP) as applied to trusts (it’s currently 1,000 years out). Two nationally recognized law professors then published an empirical study of federal banking data concluding that as of the end of 2003 roughly $100 billion in trust funds had shifted to states – like Florida – that abolished the RAP.  According to the authors these new trust funds may translate into as much as $1 billion in yearly trustees’ fees. So yeah, the stakes are high.

Enter the new Florida Uniform Directed Trust Act (FUDTA)

The latest crop of market-driven legislation affecting the trust-and-estates world includes the “Florida Uniform Directed Trust Act” (FUDTA). FUDTA’s found in new Part XIV of Florida’s Trust Code. As explained in FUDTA’s Legislative Staff Analysis, it’s a slightly modified version of the Uniform Directed Trust Act (UDTA).

Florida bankers have long called for this kind of directed-trust legislation as “a competitive issue.” Here’s a quote from a 2007 article entitled Family trusts branch out:

Crain is the chair of a Florida Bankers’ Association Trust legislative committee, which expects to introduce a bill next year proposing a directed trustee statute in Florida. “It’s a competitive issue,” she said. “I personally have lost trust business because Florida doesn’t have a directed trustee statute.”

Florida’s existing trust laws “don’t go far enough in insulating a trustee,” Crain said. “You still have the duty to oversee, to monitor, to intervene,” she noted. “The directed trustee statutes in the few states that have strong ones are explicit as to the lack of responsibility on the part of the trustee for reviewing the actions of the investment manager.”

And yes, we’re talking about trust protectors

While the term “trust protector” isn’t actually used in UDTA or Florida’s new FUDTA, the official commentary to UDTA makes clear the act’s intended to cover all cases involving anyone who’s functioning as a trust protector, no matter what they call themselves.

This act applies to any arrangement that exhibits the functional features of a directed trust within the meaning of this act, even if the terms of the trust use other terminology, such as “trust protector,” “trust advisor,” or “administrative trustee.” …

The definition of a “trust director” … refers to a person other than a serving trustee that is granted a power of direction by the terms of a trust. Such a person is a trust director even if the terms of the trust or the parties call the person a “trust adviser” or “trust protector” or otherwise purport to disclaim trust director status. …

In other words, if someone’s pitching the idea of a trust protector to your client or you’re involved in a case that turns on the fiduciary duty/liability of a trust protector, what you’re really talking about is a directed trust. And from now on if you’re a Florida lawyer your first stop for any question involving directed trusts needs to be FUDTA.

How much liability protection do Florida directed trustees and trust protectors have under FUDTA?

Remember, FUDTA is all about making Florida as competitive as possible in the high stakes competition for trust business. A key competitive issue was the generally held belief that Florida’s existing trust laws didn’t “go far enough in insulating a trustee.” (Which is puzzling, given Florida’s powerful risk-management tools for trustees.) It was also unclear whether Florida trust protectors could be granted blanket exemptions from any fiduciary duties/liabilities. FUDTA addresses both of these issues head on.

Is a Florida trust protector/trust director a “fiduciary” you can sue like a trustee? YES

Florida adopted the UDTA approach to this question. Under FUDTA a Florida trust protector/trust director has the same duties and liabilities as a trustee. Bottom line, they’re fiduciaries and can be sued just like a trustee (but they can also be exculpated from liability just like a trustee).

Here’s how the powerhouse duo of Jenna and Charles (Chuck) Rubin explained this aspect of our new directed-trust act in an excellent article entitled Protectors and Directors and Advisers: Oh My! The New Florida Uniform Directed Trust Act:

F.S. §736.1408: Duty and Liability of Trust Director

A trust director is subject to the same fiduciary duty and liability as a trustee would have if it had such a power.[736.1408(1)(a)] However, such duty and liability can be modified under the trust instrument in the same manner as a trust instrument can modify the duty and liability of a trustee.[736.1408(1)(b)] Thus, for example, since the duty of a trustee to act in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries cannot be eliminated by the trust instrument under F.S. §736.0105(2)(b) for a trustee, the same minimum duty applies to the duty of a trust protector. The terms of the trust may also impose a duty or liability on a trust protector that would not otherwise apply to a similarly acting trustee.

By contrast, our more aggressive competitors, such as South Dakota, allow for the complete abrogation of fiduciary duties for trust protectors/directors in certain limited circumstances. Here’s how the South Dakota approach is described in Directions to Trust Directors of Directed Trusts, by Michael A. Sneeringer and Jordan D. Veurink.

The UDTA provides that all trust directors are fiduciaries. UDTA sec. 8. Similarly, S.D. Codified Laws ch. 55-1B provides that investment trust advisors and distribution trust advisors act in a fiduciary capacity but allows trust agreements to set forth whether trust protectors are acting in a fiduciary or nonfiduciary capacity. S.D. Codified Laws §§ 55-1B-4, 55-1B-1(2). Like the UDTA, S.D. Codified Laws § 55-1B-1.1 ensures that investment trust advisors, distribution trust advisors, and trust protectors are subject to the same fiduciary duty and liability as a trustee would have if it had such power or did not exercise a power, stating that they have “no greater liability to any person than would a trustee holding or benefiting from the rights, powers, privileges, benefits, immunities, or authority provided or allowed by the governing instrument to such trust advisor or trust protector.”

Can a Florida directed trustee get sued for doing what a trust protector/trust director tells it to do? YES

Here again Florida adopted the UDTA approach. Under FUDTA a Florida directed trustee can be sued for doing what it’s directed to do, but only if doing so would constitute “willful misconduct.” There’s no blanket liability shield for directed trustees under FUDTA. By contrast, other states are more aggressive on this front, insulating directed trustees from all liability. Here’s how the competing camps are described in the official commentary for the UDTA:

Roughly speaking, the existing statutes fall into two groups. In one group, which constitutes a majority, are the statutes that provide that a directed trustee has no duty or liability for complying with an exercise of a power of direction. This group includes Alaska, New Hampshire, Nevada, and South Dakota. …  In the other group of statutes, which includes Delaware, Illinois, Texas, and Virginia, a directed trustee is not liable for complying with a direction of a trust director unless by so doing the directed trustee would personally engage in “willful” or “intentional” misconduct.

So if you’re a Florida directed trustee, as in Delaware, Illinois, Texas, and Virginia, you aren’t liable if something goes wrong because you complied with the directions of a trust protector/director unless doing so amounts to “willful” or “intentional” misconduct. That’s a balanced yet high level of protection, but it’s not absolute.

If a balanced approach works for Delaware, why not the rest of us?

The rationale for the UDTA’s balanced approach to directed trustee liability appears to have been based, at least in part, on the if-it’s-not-broken-don’t-fix-it common sense observation that if it’s worked so well for so long in a state like Delaware (a national leader that’s often considered one of the best jurisdictions for trusts, with a directed-trust statute that’s been around since 1986), it should work for the rest of us. (Delaware has more ACTEC Fellows than Nevada and South Dakota combined—and an industry presence unrivaled by any other state.) Here’s how the the official commentary for the UDTA makes this point:

In preserving some minimal fiduciary duty in a directed trustee, the drafting committee was influenced by the prominent directed trust statute in Delaware, which provides likewise. See Del. Code Ann. tit. 12, § 3313 (2017). The popularity of directed trusts in Delaware establishes that a directed trust statute that preserves in a directed trustee a duty to avoid “willful misconduct” is workable in practice. The drafting committee therefore declined the suggestion that the Uniform Directed Trust Act should eliminate the fiduciary duty of a directed trustee completely.

By contrast, our more aggressive competitors, such as South Dakota, extend blanket liability protection to directed trustees. Here’s how the South Dakota approach on this key issue is described in Directions to Trust Directors of Directed Trusts, by Michael A. Sneeringer and Jordan D. Veurink.

Unlike the UDTA, which provides that a directed trustee shall take reasonable action to follow a trust director’s exercise (or nonexercise) of a power of direction, unless compliance would result in willful misconduct by the trustee, S.D. Codified Laws ch. 55-1B provides that a directed trustee has no duty or liability for complying with an exercise of a power of direction. See S.D. Codified Laws § 55-1B-2. Additionally, an excluded fiduciary is not liable, either individually or as a fiduciary, for [a long laundry list of potential damage claims that keep trustees up at night]. S.D. Codified Laws § 55-1B-2.

By the way, there are some really smart people who argue a blanket get-out-of-jail-free card for trust protectors is a really bad idea. For the best expression of that school of thought you’ll want to read Alexander Bove’s The Case Against the Trust Protector. Here’s an excerpt from written comments on the subject Mr. Bove previously shared with me:

In conclusion, I would like to express my belief that it is a disservice to practitioners to perpetuate what I call the fear of fiduciary duty. We readily serve to act as estate fiduciaries and trustees without such fears—why not protectors? Furthermore, it is common knowledge that exposure to liability can be reduced to a minimum, which would place more risk on the trustee and beneficiaries than on the protector. If we look at the definition of “willful misconduct” under Delaware law, for example, we would be hard pressed to justify any realistic concerns over liability. Perhaps if we stop trying to teach professionals how to fit a round peg into a square hole and instead show them how to assist clients without the fear of fiduciary duty, we would be rendering a better service to everyone.

Now back to the real world. So how’s this all supposed to work?

If there’s a breach of trust involving a directed trust covered by FUDTA, your fist line of recourse is against the party directly responsible for the breach: the trust protector/trust director. A second line of recourse is available vis-à-vis the directed trustee, but only to the extent of the trustee’s own “willful misconduct.” Again from the official commentary for the UDTA makes this point:

In summary, under the Uniform Directed Trust Act a beneficiary’s main recourse for misconduct by a trust director is an action against the director for breach of the director’s fiduciary duty to the beneficiary. The beneficiary also has recourse against a directed trustee, but only to the extent of the trustee’s own willful misconduct. Compared with a non-directed trust in which a trustee holds all power over the trust, a directed trust subject to this act provides for more aggregate fiduciary duties owed to a beneficiary. All of the usual duties of trusteeship are preserved in the trust director, and in addition the directed trustee has a duty to avoid willful misconduct.

What about the rest of FUDTA?

The Rubins provide a thorough analysis of the rest of Florida’s new FUDTA in Protectors and Directors and Advisers: Oh My! The New Florida Uniform Directed Trust Act. If you’re trying to make sense of our new directed-trust act, you need to read this article. It’s by two of Florida’s top trust lawyers. Here are a few excerpts I found particularly interesting.

F.S. §736.1409: Duty and Liability of Directed Trustee

Prior to the enactment of the FUDTA, under F.S. §736.0808(2), a directed trustee was obligated to act to follow a trust director’s power of direction, unless such action was “manifestly contrary to the terms of the trust or the trustee knows the attempted exercise would constitute a serious breach of a fiduciary duty that the person holding the power owes to the beneficiaries of the trust.”

Now, a directed trustee is obligated to “take reasonable action to comply” with a direction received.[736.1409(1)] Under this provision, a directed trustee is not permitted to act regarding a power of direction if by so doing the trustee would be engaging in “willful misconduct.”[736.1409(2)] The standard is a departure from the standard described above under prior law.

Aside from being the language of the uniform act itself, the “willful misconduct” limitation on acting is appropriate since it is the same standard applicable under earlier law when one trustee had power to direct a co-trustee to act.[736.0703] Since that standard was acceptable when one fiduciary was directing another, and since a trust director is now imbued under the FUDTA with the same fiduciary duties as a trustee under F.S. §736.1408, it is appropriate that the willful misconduct standard is similarly applied to a directed trustee under the act. That is, no compelling policy reasons could be discerned why a trustee that is being directed should have a different limitation dependent on whether the directing person is a co-trustee with fiduciary duties or a trust director with fiduciary duties.

F.S. §736.1411: No Duty to Monitor, Inform, or Advise

A trustee has no statutory duty to monitor a trust director, nor to advise a settlor, beneficiary, trustee, or trust director as to how the trustee might have acted differently than the trust director.[736.1411(1)(a)] A trust director likewise has no statutory duty to monitor a trustee or another trust director, nor to advise a settlor, beneficiary, trustee or another trust director as to how the trust director might have acted differently than a trustee or another trust director.[736.1411(2)(a)] The provision does not bar a trustee or trust director from doing any of the foregoing, and if done, the actor does not assume a duty to continue to do so in the future.[736.1411(1)(b)]

F.S. §736.1412: Application to Co-trustee

When trust terms confer a power on one or more trustees to the exclusion of another trustee to direct or prevent actions of the other trustee, the trustee subject to direction has the same duties and liabilities as imposed under the FUDTA on a directed trustee under F.S. §§736.1409 through 736.1411.[736.1412] The draftspersons’ reasoning was that the trustee in both circumstances is being directed by another fiduciary and thus there is no justification for imposing different rules or standards on the trustee subject to direction based on whether the person giving direction is a trustee or a trust director. Regarding the required standard of conduct for liability, the willful misconduct standard of [prior] F.S. §736.0703(9) continues to apply, and thus this aspect of trustee liability remains the same as under prior law.

Co-trustees — Because the FUDTA now addresses issues of fiduciary responsibility as they relate to co-trustees, prior F.S. §736.0703(9) was deleted. It is worth noting, however, that the “willful misconduct” standard of liability for the excluded trustee has not changed; it is just found in a different location.


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Declaratory judgment actions can be uniquely useful tools for probate practitioners; they’re expressly authorized by statute in F.S. 86.041, F.S. 86.021, and F.S. 736.0201(4)(f), and they’re exceptionally flexible, often providing the only means to adjudicate a problematic clause that’s contained within an otherwise perfectly valid will. But there are important limitations.

First, F.S. 733.213 tells us a court can’t interpret or “construe” a will until after it’s been admitted to probate. That makes sense, why waste judicial resources on a declaratory judgment action involving a will that may never have legal effect.

Second, whether your declaratory judgment action is subject to the über short 3-month limitation period for will contests under F.S. 733.212(3) isn’t always clear. Why? Because F.S. 733.212(3) applies to any challenge “to the validity of the will.” And declaratory judgment actions often involve challenges to the validity of a particular clause within an otherwise valid will. For example, if a will has a clause exercising a power of appointment, whether that clause is valid or not could radically re-shape the outcome of your case. A will could also include some kind of conditional gift that’s invalid on public policy grounds (marriage restraints are always red flags), while the will itself remains valid.

What’s it mean to challenge the “validity” of a will and why does it matter?

Generally speaking, if you’re contesting one of the statutory prerequisites for admitting a will to probate, you’re litigating the kind of validity case that’s covered by F.S. 733.212(3). In order for a will to be admitted to probate:

  1. the testator must have complied with the “execution” requirements for wills under F.S. 732.502,
  2. the testator must have been “competent” under F.S. 732.501,
  3. the testator must have been free of “fraud, duress, mistake, or undue influence” under F.S. 732.5165, and
  4. the testator cannot have “revoked” the will by writing (F.S. 732.505) or conduct (F.S. 732.506).

By contrast, if you’re not contesting one of these prerequisites for admitting a will to probate, but are instead contesting the validity of a particular clause within an otherwise valid will, you’re not litigating the kind of validity challenge that’s covered by F.S. 733.212(3).

Which side of this line you fall on can have serious consequences. That’s what the litigants in the Tendler and Gundlach cases found out. In both their claims were thrown out as time barred under F.S. 733.212(3). And in both the 4th DCA subsequently reversed, reviving the claims on appeal. If you make your living drafting wills, probating wills, or litigating wills, how the 4th DCA worked its way through this fascinating statutory-construction puzzle is a must read.

Case Study No. 1

Tendler v. Johnson, 332 So.3d 521, 2021 WL 6057948 (Fla. 4th DCA December 22, 2021)

In Tendler the decedent’s will contained a clause attempting to exercise a power of appointment (POA). POAs are the Swiss Army knife of modern estate planning. They’re deceptively simple yet adaptable to almost any planning contingency. And they’re ubiquitous, often incorporated into even the most basic estate plan for all sorts of good reasons. POAs don’t get litigated all that often, but when they do the stakes can be huge.

In January of 2019 the challenger in this case was served with a “Notice of Administration,” triggering the 3-month limitation period under F.S. 733.212(3), which provides in relevant part as follows:

733.212 Notice of administration; filing of objections.— … (3) Any interested person on whom a copy of the notice of administration is served must object to the validity of the will, the venue, or the jurisdiction of the court by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred.

When is a validity challenge not a “validity” challenge?

In October of 2019 the challenger contested the validity of the will’s POA, but not the will’s admission to probate. Apparently concluding that F.S. 733.212(3) can be used to time bar any challenge to any part of a will, not just its admission to probate, the probate judge dismissed the case as being time barred. Wrong answer said the 4th DCA. Here’s why.

The 4th DCA started by working backwards from F.S. 733.103(2), which tells us the legal effect of a will’s admission to probate.

The probate of a will signifies that a will was properly executed and witnessed, and that the testator had testamentary capacity when executing the will. § 733.103(2), Fla. Stat. (2018) (“[T]he probate of a will in Florida shall be conclusive of its [1] due execution; that it was executed by a [2] competent testator, [3] free of fraud, duress, mistake, and undue influence; and that the will was [4] unrevoked on the testator’s death.”).

OK, so this statute’s telling us that if a court enters an order admitting a will to probate, that court order conclusively establishes as a matter of law that the testator complied with all of the statutory prerequisites for admitting a will to probate. So, the 4th DCA reasoned, if the validity challenge that’s being asserted isn’t contesting one of these prerequisites for admitting a will to probate, it’s not the kind of validity challenge covered by the 3-month limitations period in F.S. 733.103(2). So saith the 4th DCA:

The use of the word “validity” in chapter 733 pertains to the compliance with the technical requirements of execution—signatures and witnesses—and to the testamentary capacity of the testator—the required factors for a will to be probated. …

Section 733.212(3)’s use of the term “validity of the will” relates back to the use of the same term in section 733.107, so it pertains to the admission of a will to probate or a revocation of probate. Here, Tendler challenges not the validity of the will but the effectiveness of the Decedent’s attempted exercise of the Rison Trust’s limited power of appointment in article 4 of the will. Tendler’s challenge is outside of the three specific issues covered by section 733.212(3). That statute speaks of the “validity of the will,” not of the “validity of the will or a part thereof.”

Tendler’s objection to the effectiveness of the Decedent’s attempted exercise of the Rison Trust’s power of appointment requires the court to construe article 4 of the will as well as provisions of the Rison Trust and the Tendler Trust. This was not a challenge to the “validity of the will” within the meaning of section 733.212(3), so the circuit court erred in dismissing Tendler’s response to the PRs’ petition as time-barred.

And remember, you can’t “construe” a will until after it’s been admitted to probate

The court also reasoned that if you can’t file a declaratory judgment action until after a will’s admitted to probate, it doesn’t make sense to equate all declaratory judgment actions as objections to a will’s probate. So saith the 4th DCA:

Essentially, Tendler and the PRs both sought to have the circuit court construe a provision of the will. A petition to construe a will is premature before the will has been admitted to probate. § 733.213, Fla. Stat. (2018) (“A will may not be construed until it has been admitted to probate.”); In re Est. of Dahl, 125 So. 2d 332, 335 (Fla. 2d DCA 1960) (explaining that “[n]o petition or complaint for construction may be maintained in any court until the will has first been probated”); Cody v. Cody, 127 So. 3d 753, 756 (Fla. 1st DCA 2013) (holding that the order construing a will to determine beneficiaries was premature as “the probate court has not actually admitted the will to probate”); First Nat’l Bank of Miami v. Risolia, 200 So. 2d 260, 260 (Fla. 3d DCA 1967) (finding that “[t]he circuit court has jurisdiction to construe the provisions of a will so long as the will has first been probated and the circuit court was the court first obtaining jurisdiction for construction”). …

Finally, this case concerns the obligation of the Rison trustee in light of the will’s exercise of the limited power of appointment contained in the Rison Trust. The procedural path of this case supports the notion that Tendler’s claim should not have been dismissed. The PRs brought the Trust/will conundrum before the probate judge with notice to Tendler. It is as if the PRs filed within the probate case a declaratory judgment action with regard to the Rison Trust assets. As pointed out in oral argument, the obligations of the Rison trustee might well have been litigated in Maryland, the situs of the trust, or otherwise outside of probate. Once the PRs injected the issue into the Florida probate proceeding, with notice to Tendler, the principle of fundamental fairness favors Tendler’s ability to have a voice in the court’s resolution of the issues.

Case Study No. 2

Gundlach v. Gundlach, — So.3d —-, 2022 WL 1654815 (Fla. 4th DCA May 25, 2022)

In Gundlach a father (testator) wanted his estate to go first to two sons, then to their respective children (testator’s grandchildren). One of the sons remarried after his wife passed away. This second wife had children from a prior relationship.

Testator was worried that some part of his estate might end up going to his son’s second wife or her children (not his grandchildren). Testator figured the best way to make sure the family assets stayed within the family was to include a clause in his will that created a trust for remarried son, which would remain in place for as long as son remained married. If son with second wife were ever not married, then his trust goes away and he gets his share of the family inheritance outright. That sounds a lot like a restraint on marriage.

Here’s how the 4th DCA described the will:

… the will stated that if at the time of decedent’s death or any time thereafter, Appellant is not married because of divorce, death, or otherwise, then the Trust shall not be established, and if established, it shall terminate, and all the assets which would have been placed in the Trust would be delivered outright to Appellant, provided Appellant first executed an irrevocable agreement between himself and his children agreeing that all assets he received from the estate will be conveyed only to his biological children and no others.

Unlawful restraint on marriage?

Anytime a will or trust conditions a devise on a beneficiary’s marital status there’s a risk that condition’s going to be invalidated on public policy grounds. For a solid explanation of this area of the law you’ll want to read Manipulating the Conduct of Beneficiaries with Conditional Gifts by Texas law professor Gerry Beyer. Beyer writes for a Texas audience, but the legal principles are widely applicable and just as useful for Florida practitioners. Here’s an excerpt:

Marriage is often seen as the foundation of the family unit and therefore one of the pillars upon which our society is based. Because of the importance of marriage, Texas courts generally have found restraints on marriage unenforceable whether resulting from a promise not to marry or a condition forfeiting rights in case of marriage. See Southwestern Bell Tel. Co. v. Gravitt, 551 S.W.2d 421 (Tex. Civ. App.—San Antonio 1976, writ denied). Further, the United States Supreme Court has found marriage to be a constitutional right as an aspect of liberty protected by the Due Process Clause of the Constitution. Zablocki v. Redhail, 343 U.S. 374 (1978). Any limitation on the right to marry would seem unconstitutional and therefore unenforceable by courts, as the government actors enforcing provisions in wills and trusts. Interestingly, in spite of these policies, some conditional limitations on marriage, especially those where the dominant motive is to provide support for an unmarried or suddenly separated, divorced, or single-by-death beneficiary, are upheld. …

As a general rule, conditions that a beneficiary must be divorced to receive a benefit have been found to be contrary to public policy. In Texas, however, a provision requiring divorce as a precursor to receipt of a benefit was upheld where the testator’s dominant motive was to provide support for the beneficiary if the beneficiary became divorced or widowed. Hunt v. Carroll, 157 S.W.2d 429 (Tex. Civ. App.—Beaumont 1941, writ ref’d).

Against this backdrop testator passed away. Shortly thereafter his will’s admitted to probate and everyone’s served with a Notice of Administration triggering the 3-month limitations period under F.S. 733.212(3).

After the 3-month limitations period lapsed, remarried son filed a petition asking the court to construe his father’s will and invalidate the clause leaving his share of the estate in trust on public policy grounds. Remarried son “asserted that the condition that he no longer be married in order to receive an outright bequest was unlawful and contrary to public policy.”

Is a challenge to a restraint on marriage a challenge to the “validity” of the will? NO

The petition was challenged as being time barred. Trial-court judge bought the argument and the case was dismissed. On appeal the 4th DCA ruled — again — that construction actions that aren’t contesting any of the statutory prerequisites for admitting a will to probate aren’t the kind of “validity” challenge covered by F.S. 733.212(3). So saith the 4th DCA:

Applying our analysis in Tendler, Appellant’s petition in this case likewise did not challenge the “validity of the will” within the meaning of section 733.212(3). As discussed above, Appellant’s petition sought (1) a determination as to the validity of all or part of the testamentary trust; (2) construction of the testamentary trust; and (3) a declaration of rights under the testamentary trust pursuant to section 736.0201(4)(a), (e)–(f), Florida Statutes (2021). Appellant’s petition challenged the effectiveness of the provision of the will concerning the condition regarding his marriage. However, pursuant to Tendler, such a challenge in Appellant’s petition to “all or part of the testamentary trust” created by the will did not amount to a challenge to the “validity of the will” as used in section 733.212(3), which Tendler explains refers to the technical requirements for a will to be probated.

As such, guided by the analysis in Tendler, we hold that section 733.212(3) does not bar Appellant’s petition. Accordingly, the probate court erred in dismissing Appellant’s petition as untimely under section 733.212(3). We reverse the order granting Appellees’ motion and dismissing Appellant’s amended petition with prejudice, and remand for further proceedings.

What’s the takeaway?

While it may be satisfying to win a reversal on appeal, no one wants to incur the costs and delays inherent to this kind of “win” just to get passed the starting gate on the merits of your underlying case (which is what happened above). So what’s to be done?

The easy answer is to avoid the issue altogether. And how might that be done?  If at all possible file your declaratory-judgment action before your 3-month limitation period runs under F.S. 733.212(3). Even if you’re 100% clear that you’re not contesting any of the statutory prerequisites for admitting a will to probate so you’re case is 100% not the kind of validity challenge covered by F.S. 733.212(3), the best way to “win” this argument is to never have it. But if you do find yourself in the middle of one of these arguments in spite of your best efforts, no matter what side of the case you might be on you need to know the facts and logic of the Tendler and Gundlach cases cold. In this context they’re simply too important to ignore. You’ve been warned …