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It used to be so simple. Back in the day trust lawyers had to contend with only three possible players: settlors, trustees and beneficiaries. Today that trio’s often joined by a new creature we’re still not exactly sure what to make of: a “trust protector” (which in Florida’s Trust Code is now referred to as a trust director).

But what exactly is a trust protector? The best definition I’ve come across is by estate planning attorney Philip Ruce, whose excellent article defines a trust protector as follows:

[A] trust protector is an individual (or committee or entity) who is not a trustee but who is nevertheless granted powers under the trust that supersede corresponding powers of the trustee. For practical purposes, a trust protector is generally a person selected by the settlor of a trust to represent the interests of the settlor in making decisions related to the trust that the settlor is unable to make, most often because the settlor is deceased. The idea behind the trust protector is to have a “living embodiment” of the settlor to represent the settlor’s interests, even after the settlor is gone. The trust protector is, at its core, an agent. No title is vested in the trust protector as title is with the trustee—the protector has instead been chosen by the settlor to have some level of power to guide the trustee’s actions.

Who decides trust ambiguity disputes? A court or the trust protector?

A use for trust protectors I find especially valuable is as a tool to privatize disputes involving how to interpret poorly drafted or ambiguous text in a trust agreement. Delegating this power to the settlor’s trust protector (most likely a trusted confidant) and away from a court (staffed by a judge with zero personal history with the settlor) is explicitly sanctioned by the 4th DCA (and now the 3d DCA, below). As readers of this blog know, I’m all for privatizing inheritance litigation whenever possible. That discussion usually focuses on mandatory arbitration clauses. But there’s another ADR tool we should all keep in mind that’s potentially even more powerful: a trust protector authorized to resolve disputes by simply amending the trust to make the problem go away.

Who decides who decides? Your trust protector or a judge?

If the settlor’s intent is to delegate all questions involving ambiguous or imperfectly drafted trust clauses to his trust protector and not a court, the trust agreement needs to clearly and unmistakably say that.

The closest analogy to this issue comes from the world of arbitration, where the question of who decides the “arbitrability” of a dispute has long been the subject of contention. In 2022 the Florida Supreme Court resolved that issue in Florida, holding that if parties incorporate the AAA rules into their arbitration clause, that’s clear and unmistakable evidence of the intent to remove such authority from the courts and delegate it, exclusively, to the arbitrators. The AAA rule the Florida Supreme Court focused on provides as follows: “The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.”

Based on this guidance, if you want to make sure your client’s trust protector, not a court, decides when and if a dispute’s subject to resolution by the trust protector, including a clause that’s comparable to the AAA rule addressing the same issue is a must. The goal is to clearly and unmistakably evidence the settlor’s intent to remove such authority from the courts and delegate it, exclusively, to the trust protector. Here’s my version of what that clause might look like:

The trust protector, and not a court, shall have the exclusive power to rule on the trust protector’s own jurisdiction, including any objections with respect to the existence, scope, or validity of any power granted to the trust protector under this trust agreement or the existence of any ambiguity under this trust agreement or to the scope of the trust protector’s authority under this trust agreement to decide any claim or counterclaim. It is my express intent to remove such authority from the courts and delegate it, exclusively, to the trust protector.

The Lieberman v. Sloto case discussed below is a cautionary tale of what can go seriously wrong when your trust-protector clause doesn’t address the threshold question of who decides when and if a dispute’s subject to resolution by your trust protector.

Case Study

Lieberman v. Sloto, — So.3d —- 2025 WL 699625 (Fla. 3d DCA March 05, 2025)

This case involves a trust that owns a controlling interest in a company that operates a multi-million dollar commercial real estate company. The dispute arose after the trustee appointed the deceased settlor’s son as president of the trust’s real estate company. At the time the settlor’s son was appointed president, he was twenty-two years old, had graduated college approximately three months earlier, and had never held a paying job. The trust protector, who had known the settlor’s son since he was five years old, concluded this young man was not the right guy for the job, and directed the trustee to fire him. The trustee refused, and everyone ended up in court.

The issue before the trial court was whether a provision in the trust agreement stating that the trust protector “should make a reasonable inquiry” prior to exercising his authority to compel the firing of the settlor’s son was mandatory or discretionary. The trust protector said it wasn’t mandatory, especially in this case, where he had known the settlor’s son since he was five years old. Going through some kind of “reasonable inquiry” exercise now wasn’t going to tell him anything he didn’t already know. And just to remove any doubt, the trust protector exercised his amendment authority under another provision of the trust agreement to “correct ambiguities that might otherwise require construction or reformation by a trial court,” by amending the trust to clarify that the word “should” isn’t mandatory, it’s “permissive.”

Sounds like a straightforward trust-interpretation case, right? Wrong!

The trial court ruled that the word “should” as used in the trust agreement isn’t ambiguous, so the trust protector didn’t have the authority to resolve the dispute or amend the trust agreement to make the dispute go away. In other words, the trial court ruled that the court — not the trust protector — gets to decide “who decides” the trust-interpretation dispute before it. And the court ruled it’s the decider.

From there, things went downhill fast. The trial court then ruled that the trust protector’s interpretation of the word “should” was so lacking in merit that he — and his attorney — both deserved to be personally sanctioned per F.S. 57.105. Result: not only did the settlor’s trust protector lose the legal argument, he and his attorney were ordered to pay the other side’s legal fees.

No matter how right you are on the facts and the law, the chances of winning an appeal are always slim (think 20-30%). So appealing the court’s sanctions order in this case must have been a gut wrenching affair. Fortunately, the 3d DCA reversed the sanctions order, basically holding that the trust protector and his attorney were right all along. So saith the 3d DCA:

Accordingly, the word “should” is either 1) unambiguously advisory rather than mandatory, or 2) it is ambiguous. Therefore, it was error for the trial court to conclude that “should” in section 4.12 unambiguously means “shall.” Because “should” is, at a minimum, ambiguous, the Trust Protector had the sole authority pursuant to the Trust to interpret or clarify the meaning of the word “should.” Resolving the ambiguity as Lieberman did with the amendment defining “should” in section 4.12 to mean non-mandatory comports with the intent of the settlor. Thus, 57.105 fees were not warranted here, and the trial court abused its discretion in awarding them to Sloto.

Something went seriously wrong here

There are all sorts of reasons for why lawyers suffer from high rates of substance abuse and depression, as well as suicide. But litigation can be especially challenging. In a blog post entitled Reflections about Lawyering during National Stress Awareness Month, clinical-law professor (and former private-practice litigator) Danielle Hamilton observed:

As I’ve been thinking about stress, both its causes and cures, it occurred to me that “zealous advocacy” in practice really means “arguing a lot.” As lawyers, in order to advocate zealously on behalf of our clients, we do a lot of arguing, especially if we’re litigators. … Lawyers strive to make arguing as civil and respectable as possible, but that doesn’t make it any less unpleasant. To sum it up succinctly, consider this analogy from Tina Willis, a personal injury lawyer: “Other than professional boxing, I can’t think of any other profession where the job requires constant fighting.”

We can all agree that “arguing a lot” is part of the job and that it can be stressful under even the best of circumstances. But there need to be certain lines that aren’t crossed. The Lieberman v. Sloto case is an example of a line being crossed. No one should face the risk of 57.105 sanctions, with all of the economic and reputational damage that kind of ruling entails, just for doing your job litigating whether the word “should” is mandatory or permissive. The next time someone asks you what could possibly go wrong in their simple trust case, give them a copy of the Lieberman v. Sloto sanctions opinion.

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“Wills are uncanny and electric documents. They lie dormant for years and then spring to life when their author dies, as if death were rain. Their effect on those they enrich is never negligible, and sometimes unexpectedly charged. They thrust living and dead into a final fierce clasp of love or hatred. But they are not written in stone—for all their granite legal language—and they can be bent to subvert the wishes of the writer.” Janet Malcolm, Strangers in Paradise: How Gertrude Stein and Alice B. Toklas got to Heaven.

Malcom’s essay is the kind of trusts-and-estates writing I most enjoy (see here, here, here and here for other great examples). This kind of practice-specific writing’s not loaded with the legal and tax jargon we’re usually drowning in, focusing instead on the lived experience of the families we work with as professionals. And it was in search of this kind of writing that I recently discovered a Substack newsletter entitled The Inheritance Imagination. It’s published by Allison Tait, a law professor who writes about families and inheritance. If your practice includes any estate litigation, you’ll find this newsletter especially engaging.

Here’s an excerpt from a post entitled On Being Disinherited:

Sometimes, the reasons for leaving a child out are sympathetic. One child is doing well financially while another child has acute needs. A child is financially comfortable and the parent wants the money to go to charity. Disinheritance can still, even under such circumstances, bring unexpected grief for the child.

More often than not, however, disinheritance is an act of anger or disappointment, the final act of a parent who wishes to use money and its withholding to make a statement. A parent may disinherit a child because the child went against the parental wishes or failed to act in accordance with family expectations. In some of these cases, an estrangement precedes the disinheritance; and in many of these cases, disinheritance is used as a mode of control while the parent is alive.

And here’s an excerpt from a post entitled Under the Influence:

Stories about wills and inheritance often include stock figures – the greedy young wife, the manipulative caretaker, or the scheming stepparent. Then, once the cast of characters is set, the drama revolves around lawyers being called in, documents being drafted, wills being amended, and new beneficiaries being added while old ones are written out.

Good stuff, highly recommended.

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Increasing numbers of people have connections with one country, but live and work in another, frequently owning property or investments in several countries. This is especially true in Florida, which continues its reign as the top destination for international home buyers. Not surprisingly, cross-border issues often arise in Florida probate proceedings. This is nothing new for most of us. Fortunately, Florida law equips practitioners — and our courts — with all the tools necessary to navigate these multi-jurisdictional estates.

Lurking under these tools is an important distinction between a court’s in rem jurisdiction over property (which courts in multiple jurisdictions can exercise simultaneously over a single decedent’s disparate estate property) and a court’s in personam jurisdiction over a particular party (which usually only one court can exercise at a time in a given case).

F.S. 731.105 tells us Florida probate cases are in rem proceedings and F.S. 731.1055 tells us a foreign decedent’s Florida real estate is governed by Florida law. Read together, these rules mean that as Florida probate practitioners we live in a world where multiple concurrent probate proceedings in different states or foreign nations involving a single decedent’s cross-border estate are not only authorized, they’re to be expected.

For example, if a decedent who was domiciled in Jamaica when he died owned real estate in Florida it’s subject to Florida law (and needs to be probated in Florida), if the same decedent owned real estate in Jamaica you should assume it’s subject to Jamaican law (and needs to be probated in Jamaica), and if the same decedent owned real estate in New York you should assume it’s subject to New York law (and needs to be probated in New York). One decedent, three different jurisdictions, three concurrent probate proceedings. What could possibly go wrong?

Case Study

Markes v. Markes, — So.3d —- 2025 WL 1242092 (Fla. 4th DCA April 30, 2025)

How do you probate the estate of a man who was born in Jamaica, spent most of his life in New York, amassed considerable real estate holdings in Florida, in his old age was the subject of a guardianship proceeding in New York (which remained pending through to the date of his death), and moved back to Jamaica for the last three years of his life where he died in 2023?

Start by figuring out where he was domiciled at the time of his death. That’s not always an easy question, and in this case it was contested. According to the 4th DCA, based on the trial court’s findings the decedent’s domicile at the time of death was Jamaica.

The Broward court’s factual findings, and even its analysis of the law, shows Jamaica was the Decedent’s domicile at the time of his death, as the court found that the Decedent had moved there with no stated intention of returning to the United States, whether it be to Florida or New York. The court’s factual findings show neither state to be the Decedent’s domicile.

Then identify where the decedent’s property is deemed to be located or sitused. As explained by Prof. Finch in Choice-of-Law and Property, the situs rules can be complicated. But for probate purposes they essentially boil down to the following: anything other than real property is deemed sitused in the decedent’s place of domicile at death. By contrast, real property is sitused where it’s physically located. As in, no matter where on the planet you’re domiciled when you die, your Florida real estate’s sitused in Florida and gets probated in Florida.

If a non-resident dies with real estate in Florida, can your probate judge transfer your probate proceeding out of Florida? NO

Now back to our case. If all of our decedent’s property’s located in Jamaica, it’s easy. All you need to do is probate his estate in Jamaica. But it wasn’t. He owned real property in Broward County, Florida. No problem, probate that property in Florida and let Jamaica worry about the rest. Is that what happened? Nope. Proving once again that nothing’s ever certain in litigation … the probate court ordered the personal representative to “transfer” the probate proceeding to New York. Why? Because that’s the last place in the U.S. where the decedent resided. Does this make sense? Not even a little bit.

Just because the decedent was domiciled outside of Florida when he died doesn’t mean a Florida court lacks jurisdiction over his Florida real estate. So saith the 4th DCA:

[A] Florida court’s determination of [foreign] domicile does not relieve the court of jurisdiction over a decedent’s estate when the decedent owns property in this State. … Section 733.101, Florida Statutes (2023), establishes venue for probate proceedings in Florida: (1) The venue for probate of wills and granting letters shall be: (a) In the county in this state where the decedent was domiciled. (b) If the decedent had no domicile in this state, then in any county where the decedent’s property is located. (c) If the decedent had no domicile in this state and possessed no property in this state, then in the county where any debtor of the decedent resides. Id. (emphasis supplied). Here, Florida had jurisdiction, and venue was proper in Broward County, because the Decedent, although not domiciled in this State, owned property in Broward County.

Novel and Bewildering?

A Florida court with jurisdiction to probate a decedent’s Florida real estate can’t punt the case to somewhere else. In Markes the 4th DCA quotes a 1997 3d DCA opinion (Rogers v. Rogers) that described a similar probate-court transfer ruling as “novel and bewildering.” And just to make sure we all get the point, the 3d DCA tossed in a little Latin when describing the probate court’s ruling: “ipse dixit,” which loosely translates to: this is crazy talk.

OK, back to basics. If a decedent dies with real estate in Florida that’s where that property gets probated … no matter where on the planet he was domiciled when he died. So no, you can’t “transfer” a non-resident’s probate proceeding out of Florida. So saith the 4th DCA:

Furthermore, the Broward court erred in determining that the proceedings should be “transferred” to New York where the guardianship remains pending, but no probate proceeding has been opened. Indeed, no authority exists for a Florida court to “transfer” a proceeding to another state. In Rogers v. Rogers, 688 So. 2d 421 (Fla. 3d DCA 1997), in a similar probate contest as is present in this case, one child of the decedent objected to venue in Florida and sought to have the probate proceedings transferred to California. The trial court granted the motion and ordered the transfer. Id. at 421. In reversing, the Third District stated:

The trial court had absolutely no authority to “transfer” the probate proceeding to San Francisco, California .... The trial court's resolution of the venue issue is so novel and bewildering that this court is stymied in its efforts to find any authority relating to the proposition of whether a Dade Circuit Court can, ipse dixit, crate up and move pending litigation across the country. We then likewise hold, ipse dixit, that it cannot.

Id. at 422. Likewise, the Broward court here had no authority to “transfer” this probate proceeding to New York.

And if this situs rule means a Florida court needs to adjudicate a Jamaican decedent’s will contest to figure out who gets the Florida real estate, so be it. So saith the 4th DCA:

Florida has authority to determine the validity of any will executed by a decedent, even if he was not domiciled in this State when he died. See, e.g., In re Estate of Barteau, 736 So. 2d 57, 58 (Fla. 2d DCA 1999); In re Estate of Hatcher, 439 So. 2d 977, 980 (Fla. 3d DCA 1983); In re Swanson’s Estate, 397 So. 2d 465, 467 (Fla. 2d DCA 1981); see also Biederman, 161 So. 2d at 542 (“The state in which the testator’s property is located has jurisdiction over the property, and it has the power to grant original probate without waiting for the courts of the testator’s domicile to pass upon the question of the validity of the will.”).

An insider’s perspective: Brandan Pratt

If you’re a practitioner you might have some ideas for why this case developed the way it did, but you wouldn’t know for sure unless you had the good fortune to speak with one of the attorneys involved. Well in this case, we’re all in luck. Probate litigator extraordinaire Brandan Pratt was on the winning side of this appeal. I asked Brandan if I could interview him about the case, and he graciously agreed.

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Brandan J. Pratt of Huth, Pratt & Milhauser in Boca Raton was on the winning side of Markes v. Markes, an interesting 4th DCA appellate opinion I wrote about here involving a contested, multi-jurisdictional estate with contacts in New York, Florida and Jamaica. The 4th DCA ruled in that case that a Florida probate judge can’t transfer a probate proceeding to New York if the decedent owned real estate in Florida. I invited Brandan to share some of the insights he drew from this case with the rest of us and he graciously agreed.

What strategic decisions did you make that were particularly outcome determinative at the trial-court level? On appeal?

From a strategy standpoint, we wanted to have the domiciliary estate administration in Florida for a few reasons. First, Florida domiciled individuals are not subject to state estate tax. Whereas, New York domiciled individuals are subject to state estate tax, which has much lower exemption level than the federal estate tax. This estate would not be subject to federal estate tax, but has the potential of being subject to estate taxes in New York if the Decedent’s domicile was New York. Second, the Decedent didn’t own any real estate in New York, but owned ten pieces of real estate in Florida. Therefore, if New York was the domiciliary estate administration, there would still have to be an ancillary estate administration in Florida, which would increase the costs of administration.

We were anticipating that the Appellant would contest the validity of the Decedent’s Will. We wanted to file our Petition for Administration in Florida before proceedings in New York were initiated, so we could claim that the Florida court had jurisdiction under the principle of priority in administration. The Appellant was not a beneficiary under the Will and was not nominated as personal representative under the Will. Accordingly, we were not required to serve him by formal notice with the Petition for Administration or serve him with the Notice of Administration. We made the strategic decision to serve the Appellant with the Notice of Administration to provide a time frame for contesting the validity of the Will and to help solidify the jurisdiction of the administration in Florida.

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? On appeal?

I don’t think we could have done anything differently, and considering the outcome of the case, we believe we made the correct decision. It was a complex jurisdictional case. The Probate Code states that domicile is synonymous with residence. However, the case law explains that a person can have more than one residence, but only one domicile. The domicile is the residence that the Decedent intends to be his permanent legal residence. In this case, the Decedent had three residences. We thought that we had enough evidence to prove that the Decedent intended for his Florida residence to be his domicile based on the actions that the Decedent took to make Florida his domicile. The fact that the Decedent was the subject of ongoing guardianship proceedings in New York at the time of death may have confused the trial court due to the differences in the laws, for a few reasons.

First, the law governing jurisdiction in guardianship proceedings is substantially different in New York. In Florida, the jurisdiction of the guardianship proceedings and probate proceedings are both where the Ward or Decedent resides. If the Decedent is subject to a guardianship in Florida at the time of death, the probate proceedings are typically filed in the same court as a companion case and are heard by the judge who is hearing the guardianship. In contrast, jurisdiction of guardianship proceedings in New York can be based on simply being “present in the state” or having “personal connections” to the state. Jurisdiction for probate proceedings in New York is based on domicile.

Second, the laws governing guardians of the property are substantially different in New York. In Florida, to have a guardian of the property appointed, the Ward must be completely incapable of exercising the rights that are removed. In New York, as in this case, the Decedent had a financial guardian appointed, but retained many financial rights. Specifically, the Decedent had a credit card, had unrestricted access to a bank account that was continually replenished by the guardian, retained the right to travel, retained the right to determine his domicile, and even retained the right to make changes to his estate plan.

    Another confusing aspect of the New York guardianship proceedings was that the guardianship court entered an order requiring the Decedent’s Will to be deposited with the New York Surrogate’s Court. The Appellee argued that the guardianship court’s order regarding the Will deposit was an indication of the New York guardianship court’s intention to assume jurisdiction over the Decedent’s probate proceedings, which is how things would be handled in Florida. In Florida, Wills cannot be filed with the court prior to a testator’s death. However, New York law allows a testator to file a Will with the Surrogate’s Court for safe keeping, which was ordered by the Guardianship Court. However, this was not an indication of the New York guardianship court’s intention to take jurisdiction over the probate proceedings because guardianship proceedings are handled in the Supreme Court. The Will was ordered to be deposited with Surrogate’s Court, which is where probate proceedings are handled. Accordingly, the guardianship court could not assume jurisdiction over the probate proceedings, because they would be handled by different courts in New York.

    Do you think there’s anything that could have been done in terms of better estate planning to avoid this litigation or at least mitigate its financial impact on the family?

    The main issue had to do with the determination of the Decedent’s domicile. The Decedent was domiciled in New York for many years, while also owning a condo that he visited regularly in Florida. The Decedent was retiring and was selling all of his real estate in New York and wanted to change his domicile to Florida. From a planning perspective, the Decedent did the things that a Florida attorney would advise to change domicile to Florida, including filing an affidavit of domicile, claiming homestead on his Florida residence, obtaining a Florida driver’s license, registering to vote in Florida, and identifying Florida as his address on his federal income tax returns. Unfortunately, there were some things done by attorneys in New York that I would not have recommended. Specifically, after the Decedent had taken the action to change his domicile to Florida, he made changes to his estate plan through an attorney in New York. The estate planning documents that the Decedent signed contain language that state that the Decedent is a “resident” of New York. Although the estate planning documents don’t say that the Decedent is “domiciled” in New York, it would have been better to have stated that the Decedent was domiciled in Florida. However, under those circumstances, the attorney in New York would not have been able to prepare the documents. In addition, an attorney was appointed as the guardian of the property in New York. The guardian filed tax returns listing the Decedent’s accountant’s address in New York as the Decedent’s residential address and continued to pay New York state income taxes. We understand that the guardian was reluctant to list the Decedent’s Florida address as the Decedent’s residential address on the tax returns out of concern that the guardianship proceedings would be transferred to Florida.

    Any final words of wisdom for estate planners and probate lawyers of the world based on what you learned in this case?

    I feel like attorneys in Florida, especially in the trust and estate practice area, are taught that there are a model set of laws (such as the Uniform Probate Code and Uniform Trust Code) that have been adopted in Florida and many other states. In addition, when the substantive laws of another state apply in Florida proceedings, it is presumed that the laws of the other state are the same as the laws in Florida. Therefore, it is easy to fall into the trap of assuming that the laws of a different state are similar to the laws in Florida. I would caution against falling into this trap. As can be seen from this case, the laws in New York are vastly different from the laws in Florida related to estate and guardianship administration.

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    If you make your living in or around the world of trusts and estates, by now you’ve heard of the litigation that’s broken out over Jimmy Buffett’s estate. What I find most interesting about this case is that it’s not your standard inheritance dispute. As in, no one’s contesting the validity of the trust (at least not yet). What’s at issue is a critical — but often overlooked — aspect of anyone’s estate plan: who’s in charge after I die?

    Jimmy Buffett died in 2023. In that same year Forbes proclaimed him a billionaire based on a fortune that included 28% of Margaritaville, an estimated $570 million earned from tours and recording, a $50 million music catalog, and $140 million in planes, homes and Berkshire Hathaway stock. And if Buffett’s post-death earnings are anything like those of other celebrities of his stature, his most lucrative years may yet be ahead of him (a phenomenon documented in Forbes’ annual ranking of the the world’s highest-paid dead celebrities).

    Who’s in charge?

    Against this backdrop a key element of Buffett’s estate plan should have been how to ensure his vast business empire is best managed or “controlled” for the benefit of his wife, children, and later generations. That didn’t happen. How do we know? Because Buffett’s estate is currently the subject of litigation in Florida and California over this very issue. As reported in Jimmy Buffett’s widow, finance manager file dueling lawsuits for control of $275M estate:

    A war is raging over control of the multi-million-dollar estate left by the late “Margaritaville” crooner and Palm Beach resident Jimmy Buffett, according to a pair of competing lawsuits filed on opposite sides of the country. Jane Buffett, the singer-songwriter’s widow, and Richard Mozenter, Buffett’s longtime friend and financial adviser, are going head-to-head for control of the singer’s trust, which Jane Buffett in her suit said is worth $275 million. … Both accuse the other of mismanaging the trust and ask judges in each jurisdiction to remove the other person as a co-trustee, records show.

    In the commercial world, parties routinely draft contracts (such as LLC operating agreements, partnership agreements, and joint venture agreements) including non-judicial mechanisms for resolving disputes over management control. These agreements provide simple, self-executing methods for the interested parties (in this case Buffett’s wife and children) to change who’s in charge without having to go to court to do it. Assuming Buffett’s wife and business manager are not the only two human beings on the planet uniquely qualified to administer his trust, there’s no reason why Buffett’s trust agreement couldn’t have included the same type of non-judicial dispute-resolution mechanism focused exclusively on the issue of control. Another option — which I favor — would have been to include a generally-applicable arbitration clause in the trust agreement.

    Using statutory no-fault mechanisms to change trustees

    Buffett’s trust names two co-trustees: his wife and his business manager. Wife is suing in California for business manager’s removal as trustee, and business manager is suing in Florida for wife’s removal as trustee. Both presumably claim to be working for the best interests of the beneficiaries of Buffett’s trust, which are his wife (life estate) and their children (remainder beneficiaries).

    As I’ve previously reported, fortunately for Florida trust beneficiaries, as of 2007 we’ve adopted § 706(b)(4) of the Uniform Trust Code, which is the UTC’s “no fault” trustee removal provision. This UTC provision is incorporated into our trust code at F.S. 736.0706(2)(d), and it empowers a court to remove a trustee without cause if:

    There has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available.

    Although the UTC’s no-fault approach is a vast improvement over traditional trust law, it does impose one very significant hurdle: unanimous consent by all of the trust’s beneficiaries. As I’ve previously reported, this may be a lot harder than you’d expect. For example, in this case there appears to be conflict between Buffett’s wife and one of their children, which presumably will have to be ironed out prior to any unanimous agreement being reached on the trustee issue. As reported in the article quoted above:

    The Buffetts’ three children are remainder beneficiaries of the trust, and Jane Buffett has tried to remove their eldest daughter, in opposition of Jimmy Buffett’s wishes, Mozenter claimed.

    Why dueling lawsuits in California and Florida?

    As reported in the article quoted above:

    Mozenter’s petition was filed June 2 in Palm Beach County Circuit Court, and Buffett’s lawsuit was filed the next day in Los Angeles civil court, records show.

    If you’re wondering why all of a sudden there’s a race to the courtroom door in California and Florida, so am I. My guess is that both sides have concluded there’s some advantage to litigating their claims in their respective chosen jurisdictions, but both assume a court in either state would have jurisdiction to decide the case.

    So here’s the problem: what do you do when two courts in different states with equal jurisdictional authority are asked to adjudicate the same dispute? That’s what’s apparently happening in this case: two courts, one in California and the other in Florida, with equal jurisdictional authority are being asked to adjudicate the same trustee removal issue. Neither court has the authority to order the other to stand down, although both have the discretionary authority to stay their own proceedings as a matter of comity in favor of the foreign proceeding. How this kind of deadlock is resolved in Florida turns on the “principle of priority,” which I’ve previously reported on here. Under this doctrine, the court that first “exercises its jurisdiction” over the matter has priority (i.e., should be permitted to adjudicate the matter to conclusion), while the second court should stay or dismiss its proceedings pending a final adjudication of the first case, unless there are “special circumstances” justifying denial of a stay/dismissal of the second case. This would explain why both sides in the Buffett case filed mirror-image lawsuits on back-to-back days.

    What’s the takeaway?

    Uncertainty is unavoidable, the best we can do is manage it. And good estate planning is all about managing uncertainty. The trick is knowing which uncertainties or “risks” to focus on. A key risk factor in any estate plan, but especially for clients with estates as large and complex as Buffett’s, is “control.” Who is chosen to manage the estate, be it as trustee or in any other capacity, is just as important as tax planning or deciding who’s going to inherit your wealth. Unfortunately, this risk factor is often overlooked. That’s a mistake. Just ask the Buffett family.

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    It’s not uncommon for a trusts and estates litigator to wake up the morning after reaching a settlement wondering if she or he overlooked a significant tax issue. Why? Because virtually every action taken in this kind of case, from the drafting of the complaint to the settling of the lawsuit has some kind of transfer tax or income tax ramification. These tax issues can be significant, but are often a secondary focus for the parties and attorneys involved. That’s a mistake.

    For example, assume you have a case in which the decedent’s estate is subject to estate tax, and you negotiated a settlement in which your clients receive $3 million from the estate based on the decedent’s contract to make a will that’s enforceable under F.S. 732.701. Depending on how that claim is framed, either your clients are going to receive their money income-tax free under the exception for gifts and inheritances found in IRC 102, or the estate’s going to receive an estate-tax deduction under IRC 2053 for “claims against the estate.” Either way, the top marginal tax rate is going to be 40% or close to it, which means how this $3 million payment is treated for tax purposes may translate into one side or the other getting a tax bill of over $1 million or a tax deduction of over $1 million. So yeah, the stakes are high.

    Is the settlement subject to income tax?

    From an income-tax perspective, the test for determining if your clients are going to pay income tax on their settlement payment is the “origin of the claim” doctrine. If you represent the claimants and you want to make sure they get their money tax free, you need to draft your complaint with this tax issue in mind. As explained in Tax Issues When Settling a Trust or Estate Dispute: A Guide for the Litigator:

    The “origin of the claim” doctrine requires that tax consequences be based upon the facts presented. The IRS has explained that the initial pleading is the most persuasive evidence of the tax treatment of an amount subsequently recovered by way of settlement. Therefore, in preparing the initial pleading, the attorney should rely on the strongest theory under state law that supports the client’s claim and achieves favorable tax results.

    Is the settlement deductible for estate tax purposes?

    From an estate-tax perspective, whether your estate’s going to receive a deduction for a settlement payment is usually governed by the “claims against the estate” test found in IRC 2053. If the settlement arises out of a claim based on the decedent’s contractual obligation to leave an inheritance, getting a tax deduction is far from certain.

    The case everyone used to rely on in this scenario is Estate of Kosow v. Commissioner, 45 F.3d 1524 (11th Cir. 1995), in which the court held that a contract to leave property to a particular person pursuant to a divorce settlement can cause the entire balance of the decedent’s estate to be deductible for transfer tax purposes as long as the consideration for the promise to ultimately leave property to that person was full and adequate compared to the property rights given away pursuant to the contract. The problem with Kosow is that it involved an usual set of facts that may not provide much guidance for future tax payers. As explained in this wide-ranging article summarizing all of the potential tax traps lurking underneath even the simplest estate litigation settlement agreement:

    Kosow arose in an unusual setting. In that case, the executor of the estate subject to the divorce obligation was able to establish, many years after the divorce, the nature and extent of the property rights relinquished, their relative value to the inheritance rights established years earlier, and, therefore, the likelihood of full and adequate consideration for the agreed bequest occurring many years later. While that theoretical possibility usually exists in marital settlement cases, it would be a mistake to conclude that any such promise, particularly when made in favor of a third-party beneficiary who is a natural object of the decedent’s bounty, will always support a claim that effectively causes the promisor’s estate to be exempt from estate tax. Moreover, while not raised in Kosow, where one party agrees to accept a lesser amount in a divorce in exchange for a promise by the other party to leave property to children or others, the party accepting less will presumably have made a gift of the forgone amount (or of the value of the future gift) to the children or other persons at the time of the divorce. See, e.g., Rev. Rul. 79-363, 1979-2 CB 345.

    Kosow was decided almost thirty years ago. We now have a new case to dissect when trying to unravel this tax knot. It’s the Spizzirri case, and the news is not good for those hoping for a repeat of the tax deduction allowed in Kosow.

    Case Study

    Estate of Spizzirri v. Commissioner of Internal Revenue, — F.4th —-, 2025 WL 1419545 (11th Cir. May 16, 2025)

    This case involved a $3 million payment made to the decedent’s stepchildren pursuant to the terms of a marital agreement he entered into with his spouse. The stepchildren filed claims against the estate seeking this payment, and based on that claim the estate paid them and deducted the payment under IRC 2053 as a “claim” against the estate. The IRS denied the deduction and the tax issue was litigated. Underscoring the you-can’t-have-it-both-ways nature of this tax issue, the 11th Circuit went out of its way to note — twice! — that there was no evidence that the claimants paid income tax on the payment.

    The estate did not call any of Spizzirri’s stepchildren as witnesses, nor did it introduce any evidence that they had reported the payments as taxable income. … The estate also failed to call the stepchildren as witnesses though it could have asked them whether they reported the payments as income.

    In other words, if this payment was a valid claim against the estate that’s deductible for estate tax purposes, then someone should have paid income tax on it. If no one paid income taxes that fact is going to weigh heavily against an estate tax deduction. You can’t have it both ways.

    Is a contractually required inheritance payment deductible for estate tax purposes? NO

    Against this backdrop, the 11th Circuit made short work of the estate’s claimed tax deduction, noting that all five factors listed in the Treasury Regulations for cases involving inheritance payments made pursuant to contracts involving “family” transfers weighed against allowing the claimed tax deduction. So sayeth the 11th Circuit:

    The “bona fide” requirement in section 2053(c)(1)(A) bars a deduction for a claim “to the extent it is founded on a transfer that is essentially donative in character (a mere cloak for a gift or bequest).” Treas. Reg. § 20.2053-1(b)(2)(i) (2009). In transactions between family members, “a testator is mo[re] likely to be making a bequest … than repaying a real contractual obligation.” Huntington, 16 F.3d at 466. So we “subject [those transactions] to particular scrutiny, even when they apparently are supported by monetary consideration.” Id. Because Spizzirri’s stepchildren were “lineal descendants of … [his] spouse,” we apply the same “particular scrutiny” to the estate’s payments to the stepchildren that we do to transactions between family members. See Treas. Reg. § 20.2053-1(b)(2)(iii)(A) (defining “[f]amily members” as including the “spouse of the decedent” and “lineal descendants” of “the decedent’s spouse”).

    To guide our evaluation of intrafamily transfers, the Treasury Regulations list five factors that suggest a transfer was contracted bona fide. Id. § 20.2053-1(b)(2)(ii). First, “[t]he transaction underlying the claim … occurs in the ordinary course of business, is negotiated at arm’s length, and is free from donative intent.” Id. § 20.2053-1(b)(2)(ii)(A). Second, the claim “is not related to an expectation or claim of inheritance.” Id. § 20.2053-1(b)(2)(ii)(B). Third, the claim “originates pursuant to an agreement between the decedent and the family member.” Id. § 20.2053-1(b)(2)(ii)(C). Fourth, “[p]erformance by the claimant” stems from “an agreement between the decedent and the family member.” Id. § 20.2053-1(b)(2)(ii)(D). Fifth, “[a]ll amounts paid in satisfaction or settlement of a claim or expense are reported by each party for Federal income and employment tax purposes … in a manner that is consistent with the reported nature of the claim or expense.” Id. § 20.2053-1(b)(2)(ii)(E).

    Each factor weighs against finding that the payments to Spizzirri’s stepchildren were contracted bona fide.

    What’s the takeaway?

    If you’re involved in a case based on a contract claim for an inheritance payment, you need to keep in mind that just because this is a creditor “claim” subject to Florida’s ultra-short limitations periods for probate creditor claims, doesn’t mean it’s also a “claim” for federal estate-tax deduction purposes under IRC 2053. This distinction between the definition of the word “claim” for state probate law purposes and the definition of same word for federal tax law purposes is a huge trap for the unwary. Don’t fall victim to this trap. Forewarned is forearmed. And there’s no better case for teasing out these state-vs-federal law distinctions then the 11th Circuit’s opinion in Spizzirri. This case is a must read for trusts and estates litigators.

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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. The value of finality is especially high in the technically demanding and emotionally charged world of inheritance litigation. But to deliver on that promise you need to consider the special rules governing settlement agreements between beneficiaries and their fiduciaries. These rules tell us how to both conduct these negotiations and then draft these agreements to make sure they’re not undone.

    Fiduciary settlement agreements

    The general rule is that litigants deal with each other at arm’s length when settling disputes, so a settlement agreement can’t be invalidated because one side misleads the other or makes false representations during a mediation conference.

    Not so when one side’s a personal representative or trustee and the other’s a beneficiary. In those cases the fact that a litigant owes fiduciary duties to another — even while being sued — changes everything. For example, if your client’s a trustee negotiating a settlement with a beneficiary, the burden is on you to make sure [1] your beneficiary has full knowledge of all material facts related to the deal and [2] that the deal’s “fair and reasonable” (from the beneficiary’s point of view).

    What about fraudulent inducement claims?

    Fraud in the inducement occurs when a person tricks another into signing an agreement to one’s disadvantage by using fraudulent statements and representations. A beneficiary that’s fraudulently induced to sign a settlement agreement can ask a court to void it, sending everyone back to court. Settlement agreements involving personal representatives or trustees are especially vulnerable to getting voided (rescinded) on fraudulent inducement grounds because a beneficiary is legally entitled to rely on the good faith of his or her fiduciary. To make sure your settlement agreement survives this line of attack you need to do two things.

    First, start with the obvious: make sure no one’s fraudulently inducing anyone to do anything. Here are the elements of a fraudulent inducement claim as explained in an excellent Florida Bar Journal article entitled The ELR and Fraudulent Inducement Claims:

    Fraud in the inducement requires proof of: 1) a false statement of material fact; 2) that the defendant knew or should have known was false; 3) that was made to induce the plaintiff to enter into a contract; and 4) that proximately caused injury to the plaintiff when acting in reliance on the misrepresentation.

    Second, make sure your agreement includes a clause expressly waiving fraud as a ground for rescission of the agreement. In other words, as the personal representative in the Udell case learned, if your beneficiary wants out of her or his settlement agreement, a general all purpose global release clause won’t cut it; your contract also has to include a specific fraud waiver.

    Case Study

    Udell v. Udell, 397 So.3d 1050 (Fla. 4th DCA November 27, 2024)

    This case involved a trust that was funded with the proceeds of a wrongful-death claim. The wrongful-death claim was settled by the decedent’s personal representative. This personal representative is also the trustee of a life-time trust for the estate’s sole beneficiary. The beneficiary of the estate and trust grew dissatisfied with the settlement, so he hired an attorney to secure additional funds from the trust. Those negotiations resulted in a settlement agreement between the trustee and the beneficiary.

    Eight months later the parties were back in court. The beneficiary alleged that he’d been defrauded based upon the trustee’s failure to disclose material facts related to their deal. The trustee cried foul, pointing to the waiver contained in the agreement signed by the beneficiary — negotiated with the aid of separate independent counsel. Generally speaking this defense should have worked. In this case it didn’t: because of the trustee’s fiduciary duties.

    How to conduct these negotiations

    First, if the trustee didn’t fully disclose all of the related material facts, as alleged by the beneficiary, he’s breached his fiduciary duties, which means he’s guilty of fraud on this basis alone. So saith the 4th DCA:

    Further, “[i]n any transaction with a beneficiary, a fiduciary has an obligation to make full disclosure to the beneficiary of all material facts.” First Union Nat’l Bank v. Turney, 824 So. 2d 172, 188 (Fla. 1st DCA 2001). Breaches of this duty of disclosure have been held to be fraud. Id. at 188–89 (citing Donahue v. Davis, 68 So. 2d 163, 171 (Fla. 1953)).

    This rule informs how you need to conduct these negotiations. Think: full disclosure and objective fairness.

    How to draft these agreements

    Second, the absence of an express waiver of fraud in the agreement means the beneficiary is free to litigate this claim. In other words, no matter how broad the agreement’s general waiver clause might be, if it doesn’t contain these magic words you’re going to be dragged back into court. So saith the 4th DCA:

    “[O]ur supreme court has spoken clearly that no contract provision can preclude rescission on the basis of fraud in the inducement unless the contract provision explicitly states that fraud is not a ground for rescission.” Mantilla v. Fabian, 284 So. 3d 575, 575 (Fla. 4th DCA 2019) (per curiam) (alteration in original) (quoting Lower Fees, Inc. v. Bankrate, Inc., 74 So. 3d 517, 520 (Fla. 4th DCA 2011)). If a party “want[s] to contractually avoid a fraud claim, it should [ ] specifically state[ ] that in the contract[.]” Lower Fees, Inc., 74 So. 3d at 520. “Though a party may waive any right to which he is legally entitled, [including a right] secured by contract … such a proposition does not apply where there is an allegation of fraud.” D & M Jupiter, Inc. v. Friedopfer, 853 So. 2d 485, 488 (Fla. 4th DCA 2003). Applying this law to the Private Agreement and the waivers in the estate before it, all signed by appellant, none contained a specific release or waiver for fraud.

    This rule informs how you need to draft these agreements. Think: contract provision explicitly stating that fraud is not a ground for rescission.

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    In 2022 the Florida Rules of Appellate Procedure changed to allow district courts of appeal to review orders granting or denying leave to amend to add a claim for punitive damages by interlocutory appeal. That rule change has triggered a flood of appellate decisions clarifying the pleading and evidentiary requirements necessary to claim punitive damages in all sorts of cases, including cases against trustees for breach of fiduciary duty.

    When can you claim punitive damages?

    If you’re looking for a quick primer on the procedural rules underlying claims for punitive damages, I recommend an excellent article by Kimberly Berman and Gabrielle Wright entitled Where Are We Now? Punitive Damages Claims in Fla. 2 Years Post-Interlocutory Review Rule Change. Here’s an excerpt:

    To pursue a claim for punitive damages, litigants must comply with the pleading requirements set forth in Florida Rule of Civil Procedure 1.190(a) and (f) and Section 768.72, Florida Statutes. Rule 1.190(a) requires litigants to obtain court approval before amending a claim to request punitive damages.

    Rule 1.090(f) provides that a motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages. The motion to amend can be filed separately and before the supporting evidence or proffer, but each shall be served on all parties at least 20 days before the hearing.

    Section 768.72(1) provides that no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant, which would provide a reasonable basis for recovery of such damages. Subsection 2 further provides that a defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.

    Does a trustee’s breach of fiduciary duty — without evidence of fraud or malice — warrant punitive damages? NO

    Wells Fargo Bank, N.A. v. Gopher, 397 So.3d 1033 (Fla. 4th DCA October 30, 2024)

    In this case the trial court found a reasonable basis for the plaintiffs to recover punitive damages based on Wells Fargo allegedly breaching its fiduciary duties and charging more than $7 million in unauthorized and undisclosed fees while acting as a trustee. Even assuming this claim is true, a breach of fiduciary duty isn’t enough to warrant punitive damages. The plaintiff needs to also proffer evidence of fraud, malice, or other misconduct by the trustee. That didn’t happen here, so no punitives for you! So saith the 4th DCA:

    Wells Fargo allegedly violated its fiduciary duties by charging fees not properly disclosed on a fee schedule. However, a breach of a fiduciary duty, alone, does not create an automatic right to plead punitive damages. Rather, the plaintiff also must proffer evidence of fraud, malice, or other misconduct that would justify punitive damages. See Air Ambulance Pros., Inc. v. Thin Air, 809 So. 2d 28, 31 (Fla. 4th DCA 2002) (reversing punitive damage award because, although the jury found a breach of a fiduciary duty, the plaintiff did not present any evidence of fraud, malice, or other culpable misconduct). Here, the plaintiffs did not proffer any such evidence.

    Similarly, the plaintiff did not proffer any evidence that any “managing agent” of Wells Fargo participated in or condoned the improper charging of the fee. Napleton’s N. Palm Auto Park, Inc. v. Agosto, 364 So. 3d 1103, 1106–07 (Fla. 4th DCA 2023). As a result, the plaintiffs did not proffer a reasonable evidentiary basis to find employer or corporate liability for punitive damages. § 768.72(3), Fla. Stat. (2023).

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    If you make your living in and around our probate courts you’ll want to understand the pressures our state court judges are subject to, which are mostly driven by the volume of cases they juggle with a fraction of the resources available to our better funded federal courts. And to get a sense of that volume, you’ll want to read the annual statistical guide for trial courts published by Florida’s Office of the State Courts Administrator (OSCA).

    But first some context. According to the FY 2023-24 Probate Court Statistical Reference Guide, probate court filings peaked in FY 21/22, and have trended downward since then. Not sure why that’s happening, but it’s worth noting.

    And according to the FY 2023-24 Statistical Reference Guide, over 1 in 5 of all circuit court filings in Florida still happen in one of our probate courts. That’s a lot of work for probate practitioners. Perhaps not surprisingly, the Real Property, Probate and Trust Law Section is the largest section of The Florida Bar.

    By the way, the level of familiarity our probate judges have with the different types of cases they deal with is also important to consider, as reported in the FY 2023-24 Probate Court Statistical Reference Guide. For example, it may come as a surprise to many “trusts and estates” practitioners to learn that only a little over half (52.5%) of probate court filings actually fall under the “probate” category, and that for many probate judges trust cases will seem like exotic creatures, representing only half of one percent (0.5%) of overall probate court filings across the state.

    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 2023-24 Probate Court Statistical Reference Guide 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 reported in the FY 2023-24 Overall Statistics.

    Miami-Dade (11th Cir)Broward (17th Cir)Palm Beach (15th Cir)
    Probate5,0434,521 5,117 
    Baker Act4,421 3,9922,058 
    Substance Abuse1,157948 716 
    Other Social Cases1,815374 229
    Guardianship868612  589
    Trusts40 52129 
    Total 13,34410,499 8,838 
    Probate Judges4.83.02.0
    Total/Judge2,7803,4994,419

    What’s it all mean?

    In Miami-Dade – on average – each probate judge took on 2,780 new cases in FY 2023-24, while in Broward the average was higher at 3,499/judge, and in Palm Beach it was the highest at 4,419/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, as planners we should “privatize” the dispute resolution process

    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).

    Sample clauses are often the best way to understand in concrete terms how a general concept gets applied in the real world. Two of the Florida attorneys instrumental in passage of Florida’s statute expressly authorizing arbitration clauses in wills and trusts, Bruce M. Stone and Robert W. Goldman, also co-authored a 2005 ACTEC article providing sample arbitration clauses entitled Resolving Disputes with Ease and Grace. And here’s an excerpt from this article that echoes my thoughts on why an overworked and underfunded public court system weighs in favor of private arbitration:

    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 their 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.

    Second, as litigators we should anticipate the “cold judge” factor

    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 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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    Dan Seigel is an experienced trusts and estates litigator who just published an article in the Florida Bar Journal entitled Creative Strategies for Defending Cases Involving Tortious Interference With Inheritance Expectation Claims. Dan’s article is a must read for practitioners. It’s both thorough on the legal theories underlying these cases and practically focused on converting those abstract concepts into concrete tools litigators can use in real life. Good stuff, highly recommended. Here’s an excerpt:

    Over the last few years, an increasing number of cases have been filed in which plaintiffs assert a claim for tortious interference with inheritance expectation (TI) to recover assets that are not distributed under the operative will or revocable trust. This upward trend does not appear to be waning. The reasons for the proliferation of such claims include, but are not limited to, the ability to potentially expedite tort claims (which effectively bypass the estate or trust administration), minimize the number of necessary parties to the litigation, and obtain the right to a jury trial. These factors often have the effect of increasing the settlement value of a plaintiffs case.

    TI is a relatively new tort, and few cases have actually made it to a jury trial. Thus, little case law exists with respect to many of these issues. For example, few cases analyze whether a judge must resolve equitable claims when a plaintiff requests a jury trial seeking monetary damages arising from the same facts as the equitable claims.

    Unlike cases involving equitable claims, cases involving TI claims present opportunities for motions and other creative strategies. This article discusses several strategies that a defense practitioner should consider pursuing during the pendency of these cases.

    …

    Invariably, a plaintiff will attempt to increase the value of the TI claim by: 1) having a jury adjudicate equitable claims that are traditionally determined by a judge; 2) having the issue of damages adjudicated simultaneously with liability; and 3) introducing inflammatory and arguably irrelevant evidence in front of jurors. The attorney defending a TI claim should utilize all available motion practice and litigation strategies to ensure that the defendant is not disadvantaged at trial and to obtain the best possible result.