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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 …

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Knowing when to say “no” is one of the most difficult — and essential — skill sets any of us ever develops as a lawyer.

“Should I take on this very wealthy but extremely difficult client?” (NO) “Should I represent a destitute child seeking to challenge a parent’s mean-spirited and unfair will that’s otherwise perfectly legal?” (NO) “What if my client says she doesn’t care who wins or loses, she just wants to ‘do what’s right'”? (NO!!).

What makes these decisions especially challenging is that you have to make them long before you have all the facts, which means they’re usually intuitive judgment calls (backed by years of practical experience). You can’t develop the instincts to make these calls in a classroom, but you can speed up the learning curve by “virtually” experiencing these situations when you read good inheritance-related novels, or historical studies, or journalism, or smartly written case studies, like The Strange Case of Dr. Jekyll’s Will: A Tale of Testamentary Capacity. (Good trusts-and-estates movies are also wonderful learning tools).

And there’s all sorts of solid research proving that reading fiction builds emotional intelligence, the essential ingredient needed to navigate complex social situations . . . like screening prospective clients.

The Strange Case of Dr. Jekyll’s Will: A Tale of Testamentary Capacity

So back to The Strange Case of Dr. Jekyll’s Will: A Tale of Testamentary Capacity. Prof. Alton describes it as a vehicle for “examining various legal rules and doctrines that might mitigate the soundness of the testator’s state of mind and, thus, his or her capacity to make a valid will.” I agree, but it’s way more than that too. What this article really does best is demonstrate how even in the midst of the craziest set of facts, when a prospective client is absolutely sure there has to be a cause of action somewhere in all this smoke, the best answer for all concerned might be: “no, you don’t have a case.”

For example, assume a smart, thoughtful lawyer named Gabriel John Utterson comes to see you about his friend and client’s will. Utterson believes the will can be challenged on “insane delusion” grounds because his friend signed the will while operating under the assumption that he turns into a murderous crazy person when he drinks a certain secret potion. You might think “yeah, there’s a case here.” And you’d be wrong. Why? Because his friend is a guy named Dr. Jekyll who does in fact turn into a murderous crazy person named Mr. Hyde when he drinks a certain secret potion.

Sound crazy? Yup. Is real life ever just as crazy? Oh yeah. So what’s the lesson? Just because you have a bizarre set of facts doesn’t mean you have a case (it usually takes about a decade to figure this out on your own). Here’s how Prof. Alton depicts a veteran lawyer interviewing Utterson, dissecting the operative facts, applying the law, and diplomatically saying: “no, you don’t have a case.”

“Mr. Alton, I believe that my friend Henry Jekyll was laboring under an insane delusion when he made his will conferring his estate upon Edward Hyde. Certainly, at the time he first delivered the hateful will to my care, I thought that Dr. Jekyll must have become mad to do such a thing, for the reasons you have already noted.”

“Well, sir,” I replied, “I am not convinced of this. What might have been his insane delusion? At the time of the delivery of his will to you, you had no specific idea as to what delusion, if any, might have produced the will. Establishing an insane delusion requires proof of the specific, supposed facts that do not exist and that no rational person would believe. If I may be permitted to say this, Mr. Utterson, mere general speculation on your part that Dr. Jekyll was hampered by an insane delusion at the time he made his will would have been insufficient evidence on which to strike down the will. Certainly, you must concede this point.”

“Reluctantly, I do, sir,” rejoined the lawyer.

I continued. “If, at that very time when Dr. Jekyll delivered his will to you, you had learned that he believed he could become Edward Hyde and therefore wanted to leave his entire estate to his alter ego, you might well have said that this was an insane delusion, for how could any rational person believe such a thing? That certainly would be specific evidence of an insane delusion on his part that produced his testamentary disposition, even though, as we said above, the doctor most likely was not generally of unsound mind. However, as you later learned, Dr. Jekyll, on a regular basis, was becoming Mr. Hyde at this time. Thus, the will was not a product of supposed facts that do not exist; instead, as you subsequently learned, the will was a product of a fact (the Jekyll-to-Hyde transformation) which, as astounding as it seemed, was indeed occurring in the real world of your story. Q.E.D., there was no insane delusion. Again, I believe that you must concur in this ultimate conclusion.”

The solicitor simply shrugged, and our dialogue moved on to the matters of undue influence and duress.

Want to get better at screening estate cases? Read The Strange Case of Dr. Jekyll’s Will: A Tale of Testamentary Capacity. It’s fiction, and it’s also good practice for real life.

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If ownership of a business asset is contested in an estate, the answer to “who gets it?” is often found in a contract, not some will or trust. Generally speaking, a decedent’s contractual obligations are going to trump any conflicting estate planning documents he might have signed. This key point is often overlooked, especially in probate proceedings where everyone’s focused on the decedent’s will.

Contract vs. Will = conflict = non-probate transfer

For example, in the Blechman case there was a dispute over the decedent’s ownership interest in a limited liability company (LLC). In that case the decedent signed an LLC “operating agreement” (read: contract) containing the following clause:

… in the event of a death of a Member during the duration of this Agreement, the Membership Interest of the deceased Member shall pass to and immediately vest in the deceased Member’s then living children and issue of any deceased child per stirpes.

The decedent also signed a will and trust conflicting with this contractual obligation. Based on the text of the operating agreement the Blechman court ruled the contested LLC interests were never part of the decedent’s probate estate, but instead transferred immediately to his children as non-probate transfers, bypassing his conflicting estate planning documents entirely.

Bottom line, the decedent’s contractual obligations trumped his conflicting will and trust provisions.

Contract vs. Will = conflict = breach of contract

Sometimes the controlling contract doesn’t result in a non-probate transfer, but still conflicts with the decedent’s will or trust. This kind of conflict sets up a breach of contract claim against the estate.

For example, in the Finlaw case there was a dispute over the decedent’s ownership interest in a partnership. In that case the decedent signed a partnership agreement (read: contract) containing the following clause:

Each partner, who shall ultimately become a surviving spouse, further agrees to have prepared and execute a last will and testament so as to vest his or her interest in this Partnership in his or her children (lineal descendants).

The decedent also signed a Will that conflicted with this contractual obligation. Based on the text of the partnership agreement the Finlaw court ruled the contested partnership interests had to go in accordance with the terms of the partnership agreement not the will.

Bottom line, the decedent’s contractual obligations trumped her conflicting will provisions.

Contract vs. Will = no conflict = harmony

Then there are those cases where the decedent’s contractual obligations and the terms of his estate planning documents can be harmonized to work just fine with each other, which means all documents get enforced. That’s actually what happens in the vast majority of cases.

But we all know that no matter how well the documents work together, sometimes litigation is unavoidable. If you’re involved in one of these cases, expect the Blechman and Finlaw rulings to loom large. In this context, these opinions are too important to ignore.

And for those fights you’ll want to turn to a prior example of an appellate court examining — and rejecting — attempts to misapply Blechman and Finlaw. Thankfully, that’s exactly what we got in the Tita case discussed below.

Case Study

Tita v. Tita, 334 So.3d 646, 2022 WL 610127 (Fla. 4th DCA March 02, 2022):

The decedent in this case was one of the owners or “members” of a family-owned LLC that held title to two buildings. The decedent intended for two of his children to get his stake in the LLC, and for his wife to receive all of his residuary estate. I’m guessing the decedent’s ownership interest in the LLC was worth way more than the value of his residuary estate, because his wife sued to invalidate the specific bequest of the LLC to the kids.

Contract vs. Will: harmony or conflict?

The decedent in this case signed an LLC operating agreement containing the following clause:

Death Buy Out. Notwithstanding the foregoing provision of Section 8, the Members covenant and agree that on the death of any Member, the Company, at its option, by providing written notice to the estate of the deceased Member within 180 days of the death of the Member, may purchase, acquire and redeem the Interest of the deceased Member in the Company pursuant to the provision of Section 8.5.

The decedent also signed a will containing the following specific devise, which gifts the same LLC ownership interest to two of his children:

Specific Gift of LLC Interest. I give all of my interests in the Layton Hills Properties, LLC, to my son, ANDRE TITA, and my daughter, SANDRA TITA, in equal shares. If any of them predecease me, the share of the deceased beneficiary will pass to that person’s descendants who survive me, per stirpes. If one of the named beneficiaries predeceases me without descendants, their share shall lapse and pass equally to the remaining share. The main asset of the Layton Hills Properties, LLC, is real property located in Layton, Utah that has two buildings on the property ….

Harmony it is!

First, the operating agreement’s buy-out clause doesn’t automatically transfer property to anyone or otherwise “vest” ownership of the LLC in anyone. So this isn’t some kind of non-probate transfer like in Blechman.

Second, the operating agreement’s buy-out clause doesn’t say who gets the LLC after the decedent’s death, as in Finlaw. Bottom line, the LLC’s buy-out clause and the decedent’s will don’t conflict, so both should be enforced. So saith the 4th DCA:

None of the cases upon which the wife relies compel a reversal.

Blechman involved an LLC operating agreement different than the one in this case. 160 So. 3d at 154–55. The Blechman agreement explicitly provided that the “[d]eceased’s membership interest immediately passed outside of probate to his children upon his death, thus nullifying his testamentary devise.” Id. at 160. In contrast, the Operating Agreement in this case anticipated that a transfer of a member’s interest would be through a testamentary devise; there was no explicit language addressing the disposition of a membership interest upon death.

Similarly, Finlaw involved a partnership agreement that specifically required a member’s will to vest a partnership interest in a deceased partner’s children. 320 So. 3d at 845. The Operating Agreement here does not specify to whom a decedent’s interest may be passed upon a member’s death, so there is no conflict between the Operating Agreement and the decedent’s will.

But if the kids don’t get the LLC, who gets the cash?

Undeterred, wife argued that because the LLC was exercising its rights under the buy-out clause, it was impossible for the decedent’s two children to actually receive their father’s LLC interest under his will’s specific devise. Why? Because if the estate is obligated to sell this asset back to the LLC, there isn’t going to be any LLC interest left in the estate to devise to the kids. Ergo: devise fails.

Wife then argued that if the specific devise of the LLC under the will fails, whatever was paid to the estate under the buy-out clause fell into the residuary, which all goes to her. Presto, she gets it all. Did this work? Nope.

Wife’s argument was undone by F.S. 732.514, a probate code section that doesn’t get talked about all that much, but is really important to keep in mind when assets are specifically devised (as in this case). Here’s what that statute says:

732.514 Vesting of devises.—The death of the testator is the event that vests the right to devises unless the testator in the will has provided that some other event must happen before a devise vests.

Based on F.S. 732.514 the court was able to elegantly harmonize the three controlling elements of this case: (1) the decedent’s contractual obligations under the LLC, (2) the decedent’s testamentary wishes under his will, and (3) Florida probate law governing what happens when a specifically-devised asset is sold by the estate. Answer: kids get the cash. So saith the 4th DCA:

The decedent’s bequest to appellees of his interest in the Company vested upon his death. See § 732.514, Fla. Stat. (2018). Once vested, the Operating Agreement controlled the nature of appellees’ interest and the terms of a buyout. …

Here, the decedent was in possession of a membership interest in the Company when he died. Nothing in the Operating Agreement operated to trump the will and effect a transfer of the membership interest outside of the will. The membership interest devised to appellees was a specific legacy that became part of the probate estate. See Babcock v. Est. of Babcock, 995 So. 2d 1044, 1046 (Fla. 4th DCA 2008) (“A specific legacy is a gift by will of property which is particularly designated and which is to be satisfied only by the receipt of the particular property described.” (quoting In re Est. of Udell, 482 So. 2d 458, 460 (Fla. 4th DCA 1986))). Because the Company elected to exercise its right to purchase the decedent’s membership interest from the estate, appellees are entitled to receive the proceeds of the sale under the will.

Below are links to the briefs filed with the 4th DCA.

  1. Initial Brief
  2. Answer Brief
  3. Reply Brief

So what’s the takeaway?

If you’re a probate-law nerd (and who isn’t?!), F.S. 732.514 is what makes this case interesting. Up until when that one-sentence statute makes its appearance, this case is basically an exercise in contract interpretation. Anyone can do that.

It’s once you get past the four corners of the contract and you have to apply its text in the real world of a contested probate proceeding against the backdrop of an arguably conflicting will, that knowing your stuff as a probate practitioner really pays off. Miss how F.S. 732.514 determines the outcome of this case, and you’ve completely misunderstood the nature of the case you’re litigating.

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The work we do as trusts and estates attorneys can alter the course of our clients’ lives. But it’s tempting to think of what we do as not being particularly important in the grand scheme of things. That’s a mistake, says Terrence Franklin, a trusts and estates litigator in LA.

A few years ago Terry made a life-altering discovery about his family’s history in antebellum Florida (involving a will contest, of course) that’s evolved into a public mission for racial justice. I’m a big fan of Terry’s work, and have written about it before. Terry recently gave a TED talk that was characteristically brilliant. Highly recommended.

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Probate litigation often turns on a person’s claimed “status” as a decedent’s family member. Examples of this kind of litigation include challenges to a person’s claimed status as a pretermitted child, or an adopted adult, or an adopted-away child, or a descendant by blood, or a posthumously conceived child, or a “legally” recognized father, or a “legally” married spouse.

In most cases a claimant doesn’t have to litigate his or her status until after someone dies. Which means your statute of limitations clock doesn’t start ticking until the moment of death. That’s not necessarily true for paternity actions in probate.

If you’re age 35 or older today and you hope to establish paternity for the first time in a probate proceeding, your statute of limitations clock started running decades before the putative father died (i.e., your claim is now time barred). On the other hand, if you’re age 34 or younger today, no problem, your statute of limitations clock doesn’t start running until after the putative father dies (i.e., your claim is not time barred). If you think this arbitrary dividing line is fundamentally unfair, I agree.

What went wrong?

Here’s the problem, F.S. 95.11(3)(b) imposes a 4-year statute of limitations for all paternity actions, starting as of the date the putative child turns 18. By the time paternity’s being litigated for inheritance purposes the putative deceased father is almost always an elderly man, which means his putative children are usually middle aged adults. And that means F.S. 95.11(3)(b) effectively bars most paternity actions in probate proceedings … even if you have irrefutable DNA evidence.

The so-called legislative fix to this problem came in 2009 when F.S. 732.108(2)(b) was amended for the express purpose of ensuring that F.S. 95.11 does NOT bar paternity actions in probate proceedings. But here’s the problem: this statutory change isn’t retroactive. It only helped potential claimants who weren’t already time barred in 2009. And that’s a big problem.

For reasons I’ve previously reported, because the 2009 legislative change to F.S. 732.108(2)(b) wasn’t made retroactive, if you happen to have been age 22 or older in 2009 (i.e., age 35 or older today) you are forever time barred from adjudicating paternity in a Florida inheritance case — even if you have irrefutable DNA evidence backing you up. On the other hand, if you were age 21 or younger in 2009 (i.e., age 34 or younger today), you’re good to go. Again, this arbitrary dividing line is a function of the 2009 legislative fix not being made retroactive. It’s also patently unfair.

The reason for why the 2009 statutory change wasn’t made retroactive was addressed by the 3d DCA in Rose v. Sonson:

“Once a claim has been extinguished by the applicable statute of limitations, the claim cannot be revived because a constitutionally protected property right to be free from the claim has vested in the defendant.” Id. at 1210; see also Wiley v. Roof, 641 So.2d 66, 68 (Fla. 1994) (“Once the defense of the statute of limitations has accrued, it is protected as a property interest just as the plaintiff’s right to commence an action is a valid and protected property interest…. Florida’s statute of limitations, section 95.011, bars all action unless commenced within designated times…. Once an action is barred, a property right to be free from a claim has accrued.”).

I’m not convinced. First, all we’re talking about here is establishing a putative father’s default universe of potential intestate heirs in probate proceedings under F.S. 732.108, so no one’s infringing on his property rights or testamentary freedom (the man died intestate after all). Second, none of his other potential intestate heirs has any “vested property rights” that need protecting either. No one has vested property rights in a future expected (hoped for) inheritance that may or may not ever materialize.

Bottom line, the 2009 legislative change to F.S. 732.108(2)(b) preserving paternity actions for intestate probate proceedings should have been made retroactive, which would have avoided the inequitable system we now have in place.

Case study:

Bivins v. Douglas, — So.3d —-, 2021 WL 4888632 (Fla. 3d DCA October 20, 2021):

Against the backdrop of Florida’s inequitable treatment of middle aged adults seeking to establish paternity for the first time in an estate proceeding, there’s going to be a huge amount of pressure to find procedural workarounds in those cases where paternity is undeniable as a factual matter (think DNA evidence). One workaround that was tried in the White case —and failed — is the  “written-acknowledgement” exception. Bivins is important because just about every other possible workaround was tried in this case — and they too all failed.

Can a defendant contest the timeliness of a paternity action in a motion to dismiss? YES

If you’re on the plaintiff side of one of these cases, your first challenge is to survive a motion to dismiss. You might think that all you need to do at this stage of the game is simply include a blanket statement in your complaint alleging paternity. After all, to disprove that allegation a defendant would have to rely on facts outside the four corners of the complaint, which is usually a no-no in a motion to dismiss. And you’d be wrong. According to the 3d DCA, contesting paternity in a motion to dismiss is fair game.

[T]he blanket statement that “Pearce was the biological father” of Bivins, without more, fails to establish Pearce’s paternity. See Robinson v. Robinson, 298 So. 3d 1202 (Fla. 3d DCA 2020).

Section 95.11(3)(b) of the Florida Statutes imposes a four-year statute of limitations on an “action relating to the determination of paternity, with the time running from the date the child reaches the age of majority.” Thus, in order to qualify as Pearce’s intestate heir, Bivins would have had to establish Pearce’s paternity within the time period allowed by the statute of limitations. Here, the limitations period ran in 1987, i.e., four years after Bivins reached the age of majority when he turned eighteen years old. Because Bivins failed to obtain a judicial declaration of paternity within that period. Bivins’s claim is barred by the statute of limitations.[FN4]

[FN4:] We disagree with Appellants’ contention that the trial court erred in considering the statute of limitations in ruling on the motion to dismiss because it required the court to consider matters outside the four corners of the complaint. The second amended complaint clearly showed the applicability of the defense given that it contains allegations as to Bivins’ paternity without reference to a declaration or other proof. See Gen. Motors Acceptance Corp. v. Thornberry, 629 So. 2d 292, 293 (Fla. 3d DCA 1993).

Can the “marriage ceremony” exception get a plaintiff around the time bar for paternity actions? NO

Under F.S. 732.108(2)(a), your father’s legal paternity is established as a matter of law if your parents participated in a marriage ceremony at some time before or after your birth. Here’s the operative statutory text:

(2) For the purpose of intestate succession in cases not covered by subsection (1), a person … is … a descendant of his or her father and is one of the natural kindred of all members of the father’s family, if: (a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock …

In this case the plaintiff claimed he fell in this exception, so his paternity was established. Game over.

Not so fast said the 3d DCA. The marriage exception only applies if it involves your biological parents. If the father’s biological paternity is contested, the marriage exception doesn’t apply because it’s premised on the fact of biological paternity. And if you’re time barred from litigating that fact, you’re also time barred from claiming the marriage exception. Bottom line, defendant wins again, so saith the 3d DCA:

In another effort to circumvent the statute of limitations, Appellants assert that Bivins was born out of wedlock and that his biological mother and Pearce participated in a marriage ceremony after his birth. In Appellants’ view, Bivins is Pearce’s descendent. In support of this contention, Appellants cite to section 732.108(2)(a) of the Florida Statutes, which states, in relevant part: “For the purpose of intestate succession … a person born out of wedlock is … a descendant of his or her father … if: (a) [t]he natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.”

In making this assertion, Bivins has overlooked the fact that section 732.108(2)(a) requires proof that the marriage was between Bivins’ natural parents. This would still require a legal determination of paternity. See Thurston v. Thurston, 777 So. 2d 1001, 1004 (Fla. 1st DCA 2000) (“[A]lthough section 732.108(2)(a) permits a person born out of wedlock to establish an intestacy relationship between that person and a man married to his or her mother, … it requires the putative heir to also establish that the marriage was between his or her natural parents. Under the authority of In re Estate of Smith, [685 So. 2d 1206 (Fla. 1996)] such a probate proceeding is a proceeding relating to the determination of paternity to which section 95.11(3)(b) applies.”) (emphasis added)). Thus, Bivins would have had to prove that Pearce was his biological father to establish an intestacy relationship to Pearce on the basis of his marriage to Bivins’s mother pursuant to section 732.108(2)(a). Given that Bivins never obtained such a declaration from Pearce within the statute of limitations, this argument fails.

Can the “delayed discovery” exception get a plaintiff around the time bar for paternity actions if he’s not suing the decedent for fraud? NO

In this case the plaintiffs filed a declaratory action seeking to invalidate several trust instruments executed by the decedent. The plaintiffs weren’t suing the decedent for fraud. That whole in their case sunk their next attempted workaround to the filing deadline barring their paternity action: the “delayed discovery” exception. So saith the 3d DCA:

Here, Appellants contend that Pearce made repeated fraudulent misrepresentations that he was not Bivins’ biological father, and that said misrepresentations were made until nearly the time of Pearce’s death. Because of these fraudulent misrepresentations, Appellants claim that the facts giving rise to this cause of action were only discovered four years ago. In Appellants’ view, the action to establish paternity is timely, given that the alleged fraud occurred less than twelve years ago.[FN6] This argument fails.

The delayed discovery doctrine applies solely to causes of action that are specified in section 95.031, Florida Statutes, which includes claims of fraud, products liability, professional malpractice, medical malpractice, and intentional torts based on abuse. See Davis v. Monahan, 832 So. 2d 708, 709–10 (Fla. 2002) (refusing to extend the application of the delayed discovery doctrine to claims involving breach of fiduciary duty). Given that Appellants failed to specifically plead a claim for fraud on the part of Pearce, the delayed discovery doctrine does not serve to bar the application of the statute of limitations.

[FN6:]  Appellants cite to section 95.031(2)(a) for the proposition that “in any event an action for fraud under s. 95.11(3) must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered.” However, as discussed above, Appellants never included a claim for fraud in any of the three versions of the complaint filed below.

Can the “equitable estoppel” exception get a plaintiff around the time bar for paternity actions if he wasn’t aware of the decedent’s paternity? NO

Plaintiff next argued that he would have filed a timely paternity action, but he was “induced” not to because the decedent “fraudulently” concealed the fact of his paternity. Therefore, the decedent’s estate is now equitably estopped from using that fraud as a defense. The problem with this argument is that it only works if the plaintiff knew of the decedent’s paternity decades earlier when a timely paternity action could have been filed. That’s not what plaintiff is claiming, in fact he’s claiming the opposite. Plaintiff strikes out again, so saith the 3d DCA:

The doctrine of equitable estoppel bars the application of the statute of limitations defense where an injured party recognized a basis for filing suit, but was induced to forbear filing suit during the limitations period by the party who caused the injury. W.D. v. Archdiocese of Miami, Inc., 197 So. 3d 584, 590 (Fla. 4th DCA 2016). The argument here is that Pearce fraudulently induced Bivins to forego his right to establish paternity by fraudulently concealing the fact that he was Bivins’ biological father, which Bivins did not discover until years later.

This argument fails because “equitable estoppel ‘presupposes that the plaintiff knows of the facts underlying the cause of action but delayed filing suit because of the defendant’s conduct.'” Black Diamond Props., Inc. v. Haines, 69 So. 3d 1090, 1094 (Fla. 5th DCA 2011) (citations omitted) (emphasis in original). In other words, Bivins would have had to: (a) be aware of the right to file a claim for paternity, but (b) then failed to do so because of Pearce’s fraudulent misrepresentation. First, the second amended complaint contains no allegations that anyone actively induced Bivins into foregoing filing a paternity suit. Further, Appellants’ argument centers on the fact that Bivins did not become aware of the facts underlying this cause of action, including Pearce’s status as his biological father, until recently given Pearce’s alleged fraud. The above facts render the doctrine of equitable estoppel inapplicable.

Lesson learned?

Again, if you get a call from someone age 22 or older in 2009 (i.e., age 35 or older today) who wants to establish paternity in an inheritance case, that person’s claim is now time barred. This arbitrary dividing line is unjust. So you’re going to want to find a workaround (especially if you have irrefutable DNA evidence backing you up). Stop and read Bivins and White (the failed “written exception” case). No matter how just your cause might be, there’s no sense banging your head against a wall (as well as wasting a lot of time and money) by litigating exceptions to the time bar if those same arguments have already been tried and rejected. You’ve been warned …

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Joaquin Perez had a life insurance policy with a death benefit of $250,000. His son and daughter were equal beneficiaries of the policy. Mr. Perez was tragically shot and killed by his mentally-ill son. The son was ultimately found not guilty of his father’s murder by reason of insanity. The question then became, does Florida’s Slayer Statute apply in this case even though there’s no murder conviction?

What’s the slayer rule?

At common law, a person couldn’t inherit property from someone they murdered. This was known as the “slayer rule.” You’d be surprised how often this rule comes up in inheritance cases (see here, here, here, here).

Florida codified the common-law slayer rule in F.S. 732.802. Here’s the operative text as applied to life insurance policies:

(3) A named beneficiary of a bond, life insurance policy, or other contractual arrangement who unlawfully and intentionally kills the principal obligee or the person upon whose life the policy is issued is not entitled to any benefit under the bond, policy, or other contractual arrangement; and it becomes payable as though the killer had predeceased the decedent.

Does Florida’s Slayer Statute require a murder conviction to apply? NO

Florida’s slayer statute doesn’t require a criminal murder conviction to apply. In the absence of a criminal murder conviction, the statute can be litigated in a civil case for inheritance purposes only. Also, while a criminal conviction requires proof “beyond a reasonable doubt,” Florida’s Slayer Statute applies only in the civil context to inheritance claims, which means the statute applies the much lower “greater weight of the evidence” burden of proof standard applicable in civil cases. Here’s the operative text of F.S. 732.802:

(5) A final judgment of conviction of murder in any degree is conclusive for purposes of this section. In the absence of a conviction of murder in any degree, the court may determine by the greater weight of the evidence whether the killing was unlawful and intentional for purposes of this section.

Does the evidentiary burden-of-proof distinction between criminal and civil cases matter? Yes!

A person who’s acquitted of the crime of murder can still lose all his inheritance rights in a separate civil case under the exact same set of facts applying the lower burden of proof that controls in civil trials. In other words, the same murder trial can happen in two different courts, rely on the exact same evidence, and result in opposite outcomes.

The most famous example of this kind of opposite-outcomes-civil-vs-criminal case is the O.J. Simpson murder trial, where he was found both not guilty (in his criminal trial) and guilty (in his civil trial) for the same murders (Simpson was ordered to pay $33.5 million to the families of Nicole Brown Simpson and Ronald L. Goldman in the civil case).

Case study: Pacific Life Insurance Co. v. Matthew A. Perez et al., 2022 WL 2134959 (M.D. Fla. January 31, 2022)

In this case the court was asked to decide if the decedent’s son forfeited his rights to a share of his father’s life insurance money in spite of the fact that he was never convicted of murder. Son never responded to the civil suit. The court entered the following order confirming that YES, F.S. 732.802 actually means what it says: son is still disinherited, even though he’s not a criminally-convicted murderer.

The Court concludes that the evidence establishes Matthew unlawfully and intentionally killed his father. Notably, it is of no import that Matthew was ultimately found not guilty by reason of insanity because the Slayer Statute provides that “[i]n the absence of a conviction of murder in any degree, the court may determine by the greater weight of the evidence whether the killing was unlawful and intentional.” Fla. Stat. § 732.802(5). Also, for purposes of the Slayer Statute, the killing can be considered intentional and unlawful despite a finding of criminal insanity. See Congleton v. Sansom, 664 So. 2d 276 (Fla. 1st DCA 1995). Notably, in Congleton, a husband strangled his wife to death. He was charged with murder but was adjudicated not guilty by reason of insanity, never having gone to trial. The Slayer Statute was still applicable in the probate proceeding, even though the husband was never criminally convicted. Notably, the Court underscores that Matthew’s default in this action serves as his admission of the cross claim’s well-pled allegations, which include that he intentionally and unlawfully killed the Decedent.

In sum, the Slayer Statute provides that a beneficiary to a life insurance policy or other contractual agreement who unlawfully and intentionally kills the insured is not entitled to any benefit under the policy and it becomes payable as though the killer had predeceased the decedent. Additionally, the subject policy provides that a beneficiary’s interest in the policy ends if such beneficiary is determined to have predeceased the insured. The policy also provides that if there is a single surviving beneficiary, the amount payable will be the entire Death Benefits. Accordingly, Cristina is considered the single surviving beneficiary pursuant to the provisions of Fla. Stat. § 732.802(3) and the language of the subject policy and is therefore entitled to the entirety of the Death Benefits.

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One of the most confoundingly difficult challenges we all face as lawyers is what to do when a client’s cognitively declining in a way that’s clearly affecting her decision-making abilities, but it’s just as clear that she’s still able to understand your advice and make up her own mind about what she wants.

No matter what kind of lawyering you do, if you practice in Florida and haven’t dealt with this problem yet, just wait, sooner or later you will. Florida has the highest percentage of senior citizens of any state in the nation. And a natural consequence of a “graying” population is an increased prevalence of dementia.

Against this backdrop Florida’s supreme court recently published an opinion that (among many other ethics-rule changes) dramatically revised rule 4-1.14 (Client with Diminished Capacity). These much needed changes add new subdivisions to the rule, extensive new commentary, and generally bring Florida’s version of the rule in line with the current version of ABA Model Rule 4.14.

Florida Bar Rule 4-1.14 (Client with Diminished Capacity)

In practical, easy-to-understand terms Florida’s revised rule 4-1.14 squarely addresses the key questions you’ll want answered when representing clients with diminished capacity, such as:

  1. How is the lawyer-client relationship altered when a client has diminished capacity?
  2. When may a lawyer take “protective action” on behalf of a client with diminished capacity?
  3. What constitutes a “reasonable belief” that a client has diminished capacity?
  4. What protective actions may a lawyer take on behalf of a client with diminished capacity who “cannot adequately act in the client’s own interest”?
  5. When may a lawyer disclose to third parties information “relating to the representation of a client with diminished capacity”?

Fortunately, we’re not the first state to adopt the ABA model rule. Which means there’s lots of solid commentary out there if you’re interested in taking a deeper dive into the intricacies of this rule change or, more practically, understanding how these changes could profoundly impact your day-to-day practice. One of the best articles I found is The Delicate Ethical Requirements of Representing a Person With Diminished Capacity, by Del O’Roark, Loss Prevention Consultant, Lawyers Mutual Insurance Company of Kentucky.

Is taking protective action for clients with diminished capacity mandatory? NO

According to a Florida Bar News report entitled Rule amendment provides guidance for dealing with clients with diminished capacities, one of the primary reasons for why the newly-adopted revisions to rule 4-1.14 were introduced was to address a lack of clarity under the old rule regarding whether a lawyer’s required to seek the appointment of a guardian for a client with diminished capacity or required take any other form of protective action in these cases. That ambiguity is now gone. The revised rule

… now makes it clear that a lawyer is not required to seek a determination of incapacity, or the appointment of a guardian, or take other protective action with respect to a client,” [said Andrew Sasso, chair of the Real Property, Probate and Trust Law Section’s Ethics and Professionalism Committee]. “I think there was some debate before this change whether a lawyer was required to petition a court to have their own client’s capacity determined and appoint a guardian.” …

Many lawyers will [also] welcome the removal of a sentence from the comment section, Sasso said. The sentence stated that “if the person has no guardian or legal representative, the lawyer often must act as de facto guardian.” “Nobody understood what that meant,” Sasso said. “Exactly what is a ‘de facto guardian,’ and what are your obligations and fiduciary duties as a ‘de facto guardian?’”

What’s the nightmare scenario?

The reason the old rule’s ambiguity was a problem is that no one wants to get caught up in one of those nightmare scenarios where you’re damned if you do, damned if you don’t. As in, if your client has diminished capacity and a deal goes sideways or an estate plan’s overturned in a will contest you could get disbarred if someone files a Bar complaint alleging — in hindsight — that you should’ve taken protective action for your client or, alternatively, that you should not have taken protective action for your client. Either way, the professional risk was ever present.

For example, in In re Eugster, 166 Wn. 2d 293 (Wash. 2009), a Washington lawyer got his license suspended for 18 months (and a dissenting justice wanted to permanently disbar him) for filing a guardianship petition for an elderly client the lawyer believed was “vulnerable, and unable to understand her financial affairs, and perhaps being taken advantage of.” Sound familiar? And oh by the way, the lawyer in this case was operating under the same version of rule 1.14 Florida had in place prior to the latest round of revisions.

What are the Florida-specific innovations intended to avoid the nightmare scenario?

To avoid the Catch-22 trap lurking in the ambiguity of the old rule, Florida’s version of rule 1.14 now has two new sentences that aren’t found in the ABA model rule making clear that being someone’s lawyer doesn’t obligate you to insert yourself into their personal lives if you believe they’re sliding into incapacity (no one says you can’t, you’re just not required to do so). Here’s the first new Florida-specific sentence, which was inserted at the beginning of new subsection (b) entitled “protective action”:

A lawyer is not required to seek a determination of incapacity or the appointment of a guardian or take other protective action with respect to a client.

And just to make sure practitioners fully realize how high the stakes are if they take any action to impose a guardianship on their own client, there’s a second new Florida-specific sentence inserted at the end of new subsection (b) entitled “protective action”:

A lawyer must make reasonable efforts to exhaust all other available remedies to protect the client before seeking removal of any of the client’s rights or the appointment of a guardian.

But wait, why do we even need an ethics rule just for clients with diminished capacity anyway?

Normal attorney-client relationships are premised on the assumption that we’re working with clients that have the cognitive ability to understand the legal advice we’re giving them and make reasoned decisions based upon that advice all by themselves. In other words, it’s not a group project involving consultations with family members or the possibility of court intervention in some guardianship proceeding.

ABA Formal Opinion 96-404 (which explains much of the theory underpinning the current version of the ABA model rule) describes the normal interaction between a lawyer and client as follows:

A normal client-lawyer relationship presumes that there can be effective communications between client and lawyer, and that the client after consultation with the lawyer, can make considered decisions about the objectives of the representation and the means of achieving them.

However, again as noted in ABA Formal Opinion 96-404:

When the client’s ability to communicate, to comprehend and assess information, and to make reasoned decisions is partially or completely diminished, maintaining the ordinary relationship in all respects may be difficult or impossible.

It’s once you cross into that grey area of diminished (but still intact) capacity that the specially-tailored provisions of rule 4-1.14 kick in.

Illustration: it’s now a group project. Is that OK?

When working with an elderly client whose cognitive capacity is diminished it often helps to involve family members or some other trusted person in the representation. It’s now a group project. Is that OK? It is under rule 4-1.14, which provides the following guidance in the rule’s commentary:

The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of these persons furthers the rendition of legal services to the client and does not waive the attorney-client privilege. Nevertheless, the lawyer must keep the client’s interests foremost and, except for protective action authorized under subdivision (b), must look to the client, and not family members, to make decisions on the client’s behalf. A lawyer should be mindful of protecting the privilege when taking protective action.

And “consulting with family members … or other individuals … that have the ability to protect the client” is one of the protective-action examples provided in the rule’s commentary under the “Taking protective action” subheading.

But what about the client’s right to confidentiality? Doesn’t that bar disclosure of the client’s diminished capacity to friends and family members? Not under rule 4-1.14. New subsection (c) of the rule provides as follows:

(c) Confidentiality. Information relating to the representation of a client with diminished capacity is protected by the rule on confidentiality of information. When taking protective action under this rule, the lawyer is impliedly authorized under the rule on confidentiality of information to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

The commentary to this portion of the rule expands on the confidentiality issue with the following additional guidance.

Disclosure of client’s condition

Disclosure of the client’s diminished capacity could adversely affect the client’s interests. For example, raising the question of diminished capacity could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the representation is protected by rule 4-1.6. Therefore, unless authorized to do so, the lawyer may not disclose confidential information. When taking protective action under subdivision (b), the lawyer is impliedly authorized to make the necessary disclosures. Nevertheless, given the risks of disclosure, subdivision (c) limits what the lawyer may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, the lawyer should determine whether it is likely the person or entity consulted with will act adversely to the client’s interests before discussing matters related to the client. The lawyer’s position in these cases is an unavoidably difficult one.

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A surviving spouse’s right to an “elective share” reflects Florida’s strong public policy favoring the protection of surviving spouses. On the other hand, the fact that elective-share claims are subject to filing deadlines reflects a potentially competing public policy favoring the speedy and efficient conclusion of probate proceedings.

Both of these public policy priorities are at play in F.S. 732.2135, the probate code provision governing elective-share filing deadlines.

732.2135(2) says you can file a late elective-share claim only if a judge decides there was “good cause shown.” In other words — it’s not guaranteed, you need a court order, and if the extension is granted, the judge sets your new filing deadline.

(2) … For good cause shown, the court may extend the time for election. If the court grants the petition for an extension, the election must be filed within the time allowed by the extension.

In this subsection the statute’s tilted in favor of speed and efficiency by making it tougher to file late claims.

On the other hand, 732.2135(4) shifts the balance in the opposite direction, favoring spousal rights by preserving any late-filed elective share claim as long as you manage to file a timely extension petition. In other words — it’s guaranteed, no court order is needed, and you set your own filing deadline (all you have to do is file before the new deadline you asked for in your own petition).

(4) A petition for an extension of the time for making the election or for approval to make the election shall toll the time for making the election.

I don’t see how it’s possible to reconcile 732.2135(2) and 732.2135(4). And yet that’s exactly what the court was asked to do in the Futch case.

Case study: Futch v. Haney, — So.3d —-, 2021 WL 4760131 (Fla. 2d DCA October 13, 2021)

In this case a surviving widow filed not one — but three — petitions under F.S. 732.2135 asking for an extension of her elective-share filing deadline. Each additional petition for extension was filed within the time sought in the prior petition for extension. The day after she filed her third extension petition, surviving spouse went ahead and simply filed her elective share petition (which was within the time sought in her extension petition).

Do you need a court order to file a late elective-share claim? NO

All of the estate’s other interested parties objected to both the surviving widow’s extension petition and her elective share claim. The trial judge ruled in favor of the objecting parties, presumably choosing to enforce the “good cause” requirement in 732.2135(2) over the automatic tolling provision in 732.2135(4). Unfortunately for the objecting parties, on appeal the 2d DCA decided to go the other way. Here’s why:

Pursuant to [732.2135(1)], [Widow] was required to file her election within six months after the date of service of the notice of administration. However, within that time, she was permitted to petition the court for an extension, as provided in [732.2135(2)]. Such a petition for extension of time was required to “toll the time for making the election,” as provided in [732.2135(4)]. The statutory language is clear; because [Widow] had filed a timely petition for an extension of time, the time for making the election was tolled. … Each additional petition for extension was filed within the time sought in the prior petition, thus continuing to toll the time.

The plain language of the statute does not limit the amount of time that a surviving spouse may seek in a petition for extension, it does not prevent the surviving spouse from filing a timely subsequent petition seeking additional time, and it does not require a hearing or ruling on a petition in order for the time to be tolled. [732.2135(2)] addresses when a trial court may grant an extension (for good cause shown) and provides that if the trial court grants the extension, the election must be filed within the time allowed by the extension. But [732.2135(2)] does not require the trial court to grant a petition for extension before the time is tolled; such a reading would render meaningless the tolling provision in [732.2135(4)]. … Here, the tolling provision in [732.2135(4)] applied to [Widow’s] petitions. Because [Widow’s] election was filed during the tolling period, the election was timely.

This reading of the statute is fine if the intent is to prioritize spousal rights, which seems to be exactly what the 2d DCA had in mind:

Our conclusion is consistent with Florida’s strong public policy of protecting a surviving spouse. See Via v. Putnam, 656 So. 2d 460, 462 (Fla. 1995) (recognizing that the elective share statutes “suggest a strong public policy in favor of protecting a surviving spouse’s right to receive an elective share” (quoting Putnam v. Via, 638 So. 2d 981, 984 (Fla. 2d DCA 1994))); Velde v. Velde, 867 So. 2d 501, 507 (Fla. 4th DCA 2004) (noting “Florida’s strong public policy favoring protection of the surviving spouse”).