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If you’re a family-law or trusts and estates lawyer, you can’t ignore the Berlinger case (which I dissect below). It’s that important.

In the absence of legislative changes or a conflicting ruling out of another Florida DCA, Berlinger is now the law of the land. Which means if you’re involved in litigation pitting an ex-spouse’s unpaid alimony claim against a Florida irrevocable discretionary trust, Bacardi v. White, 463 So.2d 218 (Fla.1985), is controlling; passage of Florida’s new trust code in 2006 changed nothing.

Big Picture

One of the chief selling points fueling the boom in multi-generational dynasty trusts is asset protection from creditor attack (including claims by ex-spouses). Why give your children $’s outright when the same $’s wrapped in a properly drafted irrevocable trust have the same buying power AND they’re shielded from almost all creditor attacks (see here, here).

The reason these trusts are impervious to most creditor attacks is usually a combination of two factors: the trust has a “spendthrift clause” that complies with F.S. 736.0502, and/or the trust qualifies as a “discretionary trust” under F.S. 736.0504. Most well-drafted trusts have both provisions — but they don’t have to. A creditor-protected spendthrift trust doesn’t have to be a discretionary trust, and vice versa. See Restatement (Second) of Trusts § 155, comment b.

Over three decades ago, in Bacardi v. White, 463 So.2d 218 (Fla. 1985), the Florida Supreme Court held on public policy grounds that under certain circumstances a Florida spendthrift/discretionary trust wasn’t shielded from child-support claims or an ex-spouse’s alimony claims. When Florida adopted its new trust code in 2006, it included separate statutes for spendthrift trusts (F.S. 736.0502) and discretionary trusts (F.S. 736.0504). With regard to spendthrift trusts, our new trust code explicitly codified the Bacardi rule for “exception creditors” in F.S. 736.0503. There wasn’t a comparable statute for discretionary trusts. This omission lead to some confusion, captured best in a Florida Bar Journal article entitled Bacardi on the Rocks by Miami attorney and asset-protection maven Barry A. Nelson:

In the author’s opinion, while it is clear that the Florida Supreme Court case of Bacardi v. White, 463 So. 2d 218 (Fla. 1985), was followed when the Florida Trust Code was enacted with respect to a spendthrift trust, it is unclear whether Bacardi was followed with respect to a Florida discretionary trust. One reading F.S. §736.0504 may reasonably believe that a spouse with a judgment resulting from divorce cannot reach or otherwise attach the interest of their former spouse in a discretionary trust created under Florida law. However, based upon the discussion below, the author believes Florida Statutes should be clarified to reflect whether Bacardi was intended to be followed when the Florida Trust Code was enacted in 2006 or whether Bacardi is on the “rocks” for a discretionary trust.

Case Study

Berlinger v. Casselberry, — So.3d —-, 2013 WL 6212023 (Fla. 2d DCA November 27, 2013):

In the linked-to case above Bruce Berlinger, the beneficiary of several large trusts, agreed to pay his ex-wife, Roberta Casselberry, $16,000 a month in permanent alimony. They had been married for 30 years. Their divorce was finalized in 2007. According to the 2d DCA, after the divorce:

Berlinger . . . enjoyed a substantial lifestyle sustained through payments made to Berlinger directly or on his behalf by the Berlinger Discretionary Trusts. The trusts paid for all of his living expenses including, but not limited to, mortgage payments, property taxes, insurance, utilities, food, groceries, and miscellaneous living expenses. . . .

Neither Berlinger nor his [current] wife were employed and neither of them intended to look for work. All of their expenses were paid by the trusts.

In 2011 Berlinger stopped paying his alimony. Did he have a good reason for not paying? Who knows. This I do know: you never want to be on the receiving end of this kind of quote from your appellate panel:

“Oh what a tangled web we weave when we first practice to deceive.” Although financially able to pay, Berlinger and his attorneys went to extraordinary lengths to avoid his support obligation to Casselberry.

Against this backdrop it shouldn’t come as a surprise that Berlinger got hammered on appeal; his key defense — that new F.S. 736.0504 overrides Bacardi as applied to discretionary trusts — went nowhere. According to the 2d DCA, if an ex-spouse was entitled to an ongoing writ of garnishment against a discretionary trust under Bacardi, new F.S. 736.0504 changes nothing.

Berlinger argues that section 736.0504 specifically prohibits Casselberry from attaching distributions made to or for Berlinger because the trusts are discretionary trusts and are afforded greater protection from creditors under the Florida Trust Code. We disagree. We conclude that the Florida Supreme Court’s decision in Bacardi v. White, 463 So.2d 218 (Fla.1985), is controlling. See also §§ 736.0503, 736.0504.

And here’s how the 2d DCA explained the rationale for its ruling as applied specifically to spendthrift trusts:

According to section 736.0504(2), a former spouse may not compel a distribution that is subject to the trustee’s discretion or attach or otherwise reach the interest, if any, which the beneficiary may have. The section does not expressly prohibit a former spouse from obtaining a writ of garnishment against discretionary disbursements made by a trustee exercising its discretion. As a result, it makes no difference that the instant trusts are discretionary. Casselberry is not seeking an order compelling a distribution that is subject to the trustee’s discretion or attaching the beneficiary’s interest. Instead, she obtained an order granting writs of garnishment against discretionary disbursements made by a trustee exercising its discretion.

Sections 736.0503 and 736.0504 codify the Florida Supreme Court’s holding in Bacardi. Neither section protects a discretionary trust from garnishment by a former spouse with a valid order of support. The order in this case complied with the Bacardi decision and sections 736.0503 and 763.0504 of the Florida Trust Code.

So what now?

If you’re an estate planner, and your client is really worried about sheltering the trusts he’s creating for his children from divorce-related claims, how you react to Berlinger depends on whether the divorce threat is prospective or preexisting.

If your client has children who are NOT already involved in a divorce, or who are NOT already subject to claims for unpaid alimony, the threat is prospective. The best way to deal with the threat of future divorce claims against trust assets is to address the problem head. How? Prenups. One way parents can incentivize their children to execute prenups sheltering family dynasty trusts is incorporating the incentives directly into the trust agreement. If a trust beneficiary is going to get married, or inherits trust assets while married, the trust can be designed to cut off most — if not all — financial support until the beneficiary and his or her spouse execute a marital agreement sheltering trust assets from all divorce-related claims, including alimony. For an excellent example of how to draft this kind of clause you’ll want to read Drafting for Flexibility in Dynasty Trusts by Bruce Stone of Coral Gables, Florida. Bruce is one of the best drafters in practice today.

If your client has children who ARE already involved in a divorce, or who ARE already subject to claims for unpaid alimony, the threat is preexisting. These cases are a lot tougher to plan for, and it’s these clients that most concern commentators like Barry Nelson. Here’s an example of the type of planning scenario Barry wants us to think about, as discussed in his Florida Bar Journal article, Bacardi on the Rocks:

Divorced son Mark, a Florida domiciliary, who has a large support obligation to a former spouse, was a successful Florida residential homebuilder. As a result of the existing market downturn, Mark no longer has a source of income. Mark used all of his assets to satisfy bank guarantees on land that he stockpiled for future development. The land lost significant value, and Mark settled with his mortgage lender by using all of his liquidity in exchange for a release. Mark’s father, Jack, a wealthy and elderly retiree, consults his adviser and asks whether the testamentary trust for Mark included in his existing estate plan could be reached by Mark’s former wife who, as a result of Mark’s inability to satisfy his unpaid alimony obligation to her, received a judgment against Mark in the form of support. Jack states that when Mark was financially secure, Mark was making timely payments to his former wife. However, like many others, Mark’s ability to satisfy his debts was significantly curtailed when the value of his real estate vanished along with his capacity to earn a living as a developer. Jack is helping to support Mark (hopefully temporarily) and wants the comfort that upon Jack’s death, Mark, and not Mark’s former wife, would benefit from assets left in a discretionary trust for Mark.

For this kind of client, shopping around for a trust jurisdiction marketing itself as being especially un-friendly to ex-spouses might make sense. That’s Barry Nelson’s ultimate take-away in Update: Are Trust Funds Safe From Claims For Alimony or Child Support?:

Based upon Berlinger, parents desiring maximum protection for their children should consider creating and administering discretionary trusts in Alaska, Nevada or South Dakota, rather than Florida.

But not everyone thinks leaving Florida is such a good idea. Jonathan Gopman, Jeff Baskies, David Ruben and Evan Kaufman, all of them well-respected estate planning attorneys, recently published a piece on LISI entitled Berlinger v. Casselberry: Why the Decision Was Wrong and Florida May Not Be a Bad Trust Jurisdiction for Discretionary Trusts. Their conclusion? Take a deep breath, don’t panic, and don’t do anything rash. Here’s an excerpt:

The defendant in Berlinger filed a motion for rehearing in the Florida Second District Court of Appeals. If the motion for rehearing is granted the court will have an opportunity to revisit the case and hopefully overturn a poor decision. Should the Berlinger decision stand, it has the potential to do serious harm to both the beneficiaries of Florida trusts and to the trust industry in Florida.

If the Berlinger decision stands, hopefully the Florida legislature will quickly act to enact legislation addressing this serious problem. As further developments with respect to the Berlinger holding should be on the horizon (either by rehearing or legislative action), unless a trustee is concerned about a significant pending situation that requires immediate attention, it appears clients can (and perhaps should) wait for the final resolution of the Berlinger case to decide whether to take additional steps to further protect beneficiary’s interest in a trust.

We disagree with the recommendation that drafters of Florida trusts should consider migrating them to Alaska, Delaware, Nevada or South Dakota. We feel it is perhaps premature to rush out of Florida unless of course, you are the trustee of a discretionary trust with a beneficiary with an exception creditor issue who could use the Berlinger case against you in the near future.

Instead, we urge caution and suggest taking a bit more time before reacting (over-reacting) to the Berlinger decision. There is still hope that the case will be resolved correctly, and if not, that a legislative change will soon follow. If our reading of the legislative history and the Florida Trust Code is correct, then Florida already took strides toward making its trust law palatable to planners, and if the legislature has to adopt even more explicit language to effect that result, then doing so should only make using Florida Trusts even better.

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Most families squabble, and when the stakes are high enough, some even sue each other . . . but few do it quite like the Perelmans. The latest twist in this ongoing family saga played itself out in Florida, where the 4th DCA ruled in favor of Jeffrey Perelman (brother of controversial billionaire Ronald Perelman, who’s at the center of another mega inheritance dispute involving his former in-laws), and against his father, Raymond Perelman, in a case involving the estate of Ruth Perelman, Jeffrey’s mother and Raymond’s wife.

Mrs. Perelman executed a Will in 2010 naming her son Jeffrey — and not her husband — as executor and personal representative of her estate. Ruth Perelman died at the age of 90 at the Hospital of the University of Pennsylvania on July 31, 2011. Two months earlier, in May 2011, she and her husband had signed paperwork for the naming rights to the University of Pennsylvania School of Medicine after they made a $225 million donation to the school.

Jeffrey filed a petition to probate his mother’s 2010 Will in Pennsylvania. Thirteen days later, his father, Raymond, filed a competing petition to probate a 1991 Will in Florida. The elder Perelman accuses his son of illegally tampering with his mother’s death certificate in order to claim she was domiciled in Pennsylvania. The younger Perelman says it’s just a case of sour grapes because his mother’s 2010 Will appointed him PR of her estate instead of his father. Both are suing each other on multiple fronts in multiple courts, as reported by the Philadelphia Inquirer in Perelman family feud takes a new legal turn:

Firing the latest salvo in a philanthropist-family feud, Raymond Perelman on Tuesday accused his son Jeffrey of illegally altering the elder Perelman’s wife’s death certificate last year.

In a complaint to Montgomery County prosecutors, the elder Perelman said his son and a lawyer persuaded a funeral director last summer to change Ruth C. Perelman’s primary residence on the document from their Palm Beach, Fla., home to a Rittenhouse Square address he calls a second home.

Raymond Perelman claims the change amounts to record-tampering and document deception, crimes that could cause him “significant financial harm.”

A spokeswoman for Jeffrey Perelman, Anne Gordon, said the Philadelphia register of wills had already ruled that Ruth Perelman lived in Philadelphia at the time of her death in July 2011.

As to the complaint, Gordon said, “Raymond is upset that Ruth named Jeffrey as executor and personal representative of her will.”

It was unclear whether prosecutors would pursue the private complaint. Montgomery County District Attorney Risa Vetri Ferman could not be reached for comment.

But the claim signaled that no end is looming in the saga pitting the 95-year-old socially active businessman against his 63-year-old equally prominent and civic-minded offspring.

The Perelmans – the family includes another son, billionaire investor Ronald – have long been generous donors and active figures in the region’s arts, culture, medical, and business communities. (Both father and son also have been involved in various bids to buy The Inquirer, and Gordon is a former managing editor of the newspaper.)

The dispute over the family fortune moved into federal courts in 2010. A suit filed there by Jeffrey Perelman against his father is pending.

Case Study:

Perelman v. Estate of Perelman, — So.3d —-, 2013 WL 5807358 (Fla. 4th DCA October 30, 2013)

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 happened in this case: two probate courts, one in Pennsylvania and the other in Florida, with equal jurisdictional authority over probate matters, are being asked to adjudicate the same domiciliary probate proceeding. Here are the key facts/dates as reported by the 4th DCA:

Following Ruth’s death, Raymond filed an informal caveat in Pennsylvania on August 5, 2011. On August 11, 2011, Jeffrey delivered a petition for probate to the Pennsylvania Register of Wills, seeking to probate Ruth’s 2010 Will. On August 12, 2011, the Office of the Register of Wills sent Raymond’s counsel a letter via certified mail, notifying Raymond’s counsel of the petition and explaining that a formal caveat must be filed within ten days from the receipt of the letter or else the 2010 Will would be probated without further notice.

On August 24, 2011, Raymond filed a Petition for Administration in the probate court of Palm Beach County, Florida. In the Florida proceeding, the petition for administration was served by formal notice upon all respondents, including Jeffrey, between August 29 and August 31, 2011. Raymond’s Florida petition asserted that Ruth’s 2010 Will was invalid and sought to probate her 1991 Will.

How to resolve jurisdictional deadlocks: Florida’s “principle of priority”

Neither the court in FL or the court in PA 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.”

Under the principle-of-priority doctrine, which I’ve previously written about in the context of dueling inter-state guardianship proceedings, 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.

What’s the test? First filed vs. first to “get the ball rolling”

In this case the first probate petition was filed in Pennsylvania. But filing alone won’t cut it under the principle-of-priority test; one of the courts has to actually do something to get the ball rolling in order to be considered first in line.

The Second District has noted that there do not appear to be any cases that “actually rule on the question of whether filing, as opposed to the exercise of jurisdiction, triggers priority.” In re Guardianship of Morrison, 972 So.2d 905, 908 (Fla. 2d DCA 2007). “Thus, there is no reasonable basis to conclude that the trigger for priority is anything but the exercise of jurisdiction as was stated by the supreme court in Siegel.” Id. In Morrison, the Second District held that a foreign court first exercised jurisdiction when it entered an order to show cause; by issuing an order to show cause, the foreign court indicated its intent to grant relief unless the opposing party could convince it otherwise. Id. at 909. “The ball is rolling, so to speak, and will not be stopped until the court issues an order or the plaintiff dismisses the lawsuit.” Id.

So the first question for the 4th DCA to decide was whether the PA court had exercised jurisdiction over the matter when on August 12, 2011 — 12 days prior to the FL probate petition being filed — the PA Office of the Register of Wills sent Raymond’s counsel a letter notifying him of the petition and explaining that a formal caveat must be filed within ten days from the receipt of the letter or else the 2010 Will would be probated without further notice. According to the 4th DCA this is enough, “the ball was rolling” in Pennsylvania:

We conclude that Pennsylvania first exercised jurisdiction on August 12, 2011, when the Register of Wills issued a notice to Raymond’s counsel stating that Ruth’s 2010 Will would be probated “without further notice to you” unless Raymond filed a formal caveat. The notice in this case clearly stated that relief would be granted unless Raymond filed a formal caveat. Therefore, following the Second District’s reasoning in Morrison, the Register’s notice indicated that “the ball [was] rolling” in Philadelphia, twelve days before Raymond filed his Florida petition on August 24, 2011.

What about the “extraordinary circumstances” exception?

Having concluded the PA probate court was first in line, the 4th DCA then had to determine if there were “extraordinary circumstances” warranting the FL court’s refusal to stay its probate proceeding in favor of the PA proceeding, such as evidence of anticipated undue delay in the disposition of the PA proceeding. Answer: NO. Case goes back to PA. Here’s why:

Having concluded that Pennsylvania was the first state to exercise jurisdiction, we next consider whether the trial court abused its discretion in refusing to stay Raymond’s petition in Florida. The trial court’s order simply denied the motion to stay and did not make any finding of extraordinary circumstances that would justify refusing to apply the principle of priority as a matter of comity. Nor did Raymond make any showing that the Pennsylvania proceeding would cause undue delay. All he offered in this regard was speculation. The mere fact that Pennsylvania allows for the possibility of a de novo proceeding in the Orphans’ Court does not, without more, establish undue delay.

While Raymond argues that this case is controlled by Parker v. Estate of Bealer, 890 So.2d 508, 512 (Fla. 4th DCA 2005), we find that Parker is distinguishable. There, although the Maryland proceeding was filed first, the Maryland probate court had never admitted the will to probate, no probate proceedings in Maryland had begun, estate administration had been ongoing for six months in Florida, and significant adverse tax consequences would have occurred if the will was probated in Maryland. The extraordinary circumstances in Parker simply are not present in this case.

Accordingly, we reverse the final judgment and the order on domicile, and remand for the trial court to issue a stay pending the resolution of the Pennsylvania probate proceeding.

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As long as our state probate courts remain underfunded and overworked (see here), there’s going to be an incentive to move inheritance cases into the relatively better funded and better staffed federal court system. As explained here, to get into federal court these cases need to qualify for diversity jurisdiction, which brings us to the subject of the linked-to case above.

Mostly, in order for diversity jurisdiction to apply, complete diversity is required, in other words, none of the plaintiffs can be from the same state as any of the defendants. Two points to keep in mind when considering if you have complete diversity. First, as discussed here, the “estate” is not a party. If you’re suing an estate, your defendant is the personal representative (PR); so focus on the PR to figure out if you have complete diversity. Second, if you’re going to sue a PR, and you want to claim diversity jurisdiction, you do not look at the PR’s home state, it’s the decedent’s home state that counts.

Case Study

Leyva v. Daniels, — Fed.Appx. —-, 2013 WL 5313600 (11th Cir. September 24, 2013)

For example, if one of the plaintiffs is from the same state as the decedent (Florida), but not from the same state as the PR (Texas), do you have diversity? That was question presented to the trial judge in this case.

Marliene Hardman died in 2012, leaving behind two children, Christopher Daniels and Leyva, and several grandchildren, including Zakrzewski. In her will, Hardman named Daniels, Leyva, and Zakrzewski beneficiaries of her estate and named Daniels personal representative. Leyva and Zakrzewski sued Daniels in federal court, alleging that he breached his fiduciary duty to them as beneficiaries, mismanaged the estate, engaged in self-dealing, and generally did not fulfill his obligations under Florida probate law. Leyva and Zakrzewski argued the district court had diversity jurisdiction because they are citizens of Florida and Colorado, respectively, and Daniels is a citizen of Texas. See 28 U.S.C. § 1332(a)(1). The district court, however, concluded that because the complaint alleged claims against Daniels only as the legal representative of Hardman’s estate, he was treated as a citizen of Hardman’s home state, Florida. Thus, the court determined it lacked diversity jurisdiction. Leyva and Zakrzewski now appeal.

Right answer says the 11th Cir, it’s the decedent’s home state that counts, not the PR’s — back to state court you go! Here’s why:

“The existence of jurisdiction is a question of law we review de novo.” Travaglio v. Am. Express Co., 735 F.3d 1266, 1268, No. 11–15292, 2013 WL 4406389, at *2 (11th Cir. Aug. 19, 2013). Federal courts have diversity jurisdiction over civil actions between citizens of different states where the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1). “Diversity jurisdiction requires complete diversity; every plaintiff must be diverse from every defendant.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.1998). Under 28 U.S.C. § 1332(c)(2), “the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent.” A legal representative can retain his personal citizenship only if the suit concerns him acting in a personal capacity. See Palmer v. Hosp. Auth. of Randolph Cnty., 22 F.3d 1559, 1562 n. 1 (11th Cir.1994).

Leyva and Zakrzewski argue the district court erroneously found that Daniels was a Florida citizen because their allegations concerned Daniels acting in his personal capacity. But the complaint alleges only that Daniels acted improperly as the representative of Hardman’s estate. Any potential liability Daniels faces arises out of actions he took as the estate’s legal representative, not as an individual. Thus, Daniels is deemed a Florida citizen for purposes of this suit. See id.; 28 U.S.C. § 1332(c)(2). [FN1] And because Leyva is also a Florida citizen, the parties were not completely diverse and the district court correctly dismissed the complaint. See Triggs, 154 F.3d at 1287; see also 28 U.S.C. § 1332(a)(1).

[FN1]. Leyva and Zakrzewski argue that Daniels retains his personal citizenship because he could be held personally liable under Florida law, but they cite no case indicating that personal liability cannot be imposed on an individual when he acts in a representative capacity.

Kelley v. Kelley, — So.3d —-, 2013 WL 5729793 (Fla. 4th DCA October 23, 2013) 

It’s not unusual for family members and other beneficiaries (for example, charities) of Florida estates to reside in multiple other states (or even internationally) and have preexisting relationships with lawyers in their home jurisdictions they want to represent them in the Florida proceeding. Having your non-Florida lawyer represent you in a Florida probate proceeding is no problem, as long as [1] your pro hac vice motion provides all of the information required by Florida Rule of Judicial Administration 2.510, [2] your non-Florida lawyer is qualified under the rule, and [3] your non-Florida lawyer has associated local counsel who is a member of The Florida Bar.

Saying “NO” to someone’s choice of counsel is a big deal, and it’s warranted only in very limited circumstances. In this case the probate judge denied a pro hac vice motion because the non-Florida lawyer didn’t show a “special background” suitable for probate litigation. That may be true, but it’s not up to the judge to pick who is best suited to be your lawyer, so saith the 4th DCA:

Irreparable harm in denying the motion is two-fold. First, a party is deprived of counsel of choice. Info. Sys. Assocs., Inc. v. Phuture World, Inc., 106 So.3d 982, 984 (Fla. 4th DCA 2013). Second, the denial or revocation of counsel’s admission has future adverse consequences on the attorney. Id.; see also Brooks v. AMP Servs. Ltd., 979 So.2d 435, 437–38 (Fla. 4th DCA 2008).

The trial court’s view that the attorney needed to show a “special background,” suitable to the type of litigation in which the attorney appears, departs from the essential requirements of law. Neither the rule nor case law requires such a showing.

Although the trial court has discretion in determining whether to grant pro hac vice status, that discretion is not unlimited or absolute. See Brooks, 979 So.2d at 439. “[T]he ruling should be based on matters that appear of record before the court.” THI Holdings, LLC v. Shattuck, 93 So.3d 419, 423 (Fla. 2d DCA 2012) (quoting Huff v. State, 569 So.2d 1247, 1249–50 (Fla.1990)). “For example, something which casts doubt upon whether the applicant is actually a member of the bar of another jurisdiction or whether … the applicant is a member in good standing [within his designated jurisdiction] may support a denial of the motion.” Id. (quoting Huff, 569 So.2d at 1250) (emphasis omitted). None of those reasons are apparent in this record.

Consequently, we grant the petition and quash the order that denied the motion to appear pro hac vice.

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You’ll often hear lawyers speak in terms of suing “the estate,” or transferring property to “the estate,” or collecting a bill that’s payable by “the estate.” This kind of loose talk usually doesn’t matter, but sometimes it does. To be clear, under Florida law there’s no such thing as a separate legal entity known as an “estate.”

Case Study

Garcia v. Diamond Marine Ltd., 2013 WL 6086916 (S.D.Fla. November 19, 2013)

If you want to sue, get paid from, or transfer property to, an “estate,” all of that needs to happen via the estate’s personal representative. Skip that step and you could end up getting your lawsuit dismissed, which is exactly what happened in the linked-to case above for the following reason:

Under Florida law, a decedent’s estate is not a proper party, and the personal representative of the estate must be served in her representative capacity to subject the estate to the jurisdiction of the court. See Mclendon v. Smith, 589 So.2d 410, 411 (Fla. Dist. Ct. App. 1991); See generally Fla. Prob. R. 5.110(f)(1); but see Ferguson v. Estate of Campana, 47 so.3d 838, 842 (Fla. Dist. Ct. App. 2010) (permitting case to continue against the estate of a decedent).

Fiduciary relationships and the duties and liabilities that spring from those relationships arise in all sorts of contexts. The classic examples are “status” based, such as court-appointed personal representatives (PR’s) and trustees appointed to serve as such under written trust agreements.

But limiting your perspective to only self-labled fiduciaries isn’t very useful in inheritance disputes involving multiple transactions covering long periods of time prior to the patriarch or matriarch’s death. In those cases what you’ll probably hear is a client pointing to multiple instances of being treated “unfairly” by someone he or she trusted; what you’re not likely to hear is something that sounds like a traditional breach-of-fiduciary-duty claim (or defense). What to do? Think implied fiduciary relationships; in other words, focus on instances where fiduciary duties are implied as a matter of law based upon the facts and circumstances. This kind of fact-based implied fiduciary relationship is sometimes codified in the context of closely-held businesses, but it also applies generally anytime you have a “confidential” relationship improperly used to another’s detriment, resulting in an implied or  “constructive” trust. See, e.g., Mayer v. Cianciolo, 463 So.2d 1219, 1222 (Fla. 3d DCA 1985):

The controlling principle was explained in Craft v. Craft, 74 Fla. 262, 76 So. 772 (1917). There the Florida Supreme Court held that where one conveys real property to another, without consideration, in order to promptly consummate a sale of such property by the grantee and where it is expressly agreed that upon making the sale the grantee will remit the purchase money received therefor to the grantor, a trust in the property is created, and the grantee holds only the bare legal title while the grantor retains the beneficial interest in the property.

. . .

[P]roof of evil design on the part of the trustee is not necessary predicate to imposition of a constructive trust. Where there is “a confidential relation, a transaction induced by the relation, and a breach of the confidence reposed,” a constructive trust may arise even in the absence of fraud. Matter of Topeka Motor Freight, Inc., 553 F.2d 1227, 1231 (10th Cir.1977) (quoting Silvers v. Howard, 106 Kan. 762, 190 P.1 (1920)). Thus, where one person having legal and equitable title in property transfers it to another with whom he has a confidential relationship FN1 to hold for a particular purpose, a constructive trust arises in favor of the promisee which may be enforced where the promisor acts in a fashion so as to harm the beneficiary’s interest. See Craft; Johnson; see also Estate of Sheets v. Sheets, 558 S.W.2d 291 (Mo.Ct.App.1977).

FN1. “Confidential relations,” as a legal concept, is not confined to the strict fiduciary relationship existing between those having definite, well-recognized legal relations of trust and confidence, but extends to every possible case in which a fiduciary relation exists as a fact, though it may be a moral, social, domestic, or merely personal relationship. Robbins v. Law, 48 Cal.App. 555, 192 P. 118 (1920); Hitchcock v. Tackett, 208 Ky. 803, 272 S.W. 52 (1925). But the mere existence of kinship, without more, does not give rise to such a relation. In re Null’s Estate, 302 Pa. 64, 153 A. 137 (1930).

“There is nothing so practical as a good theory.” — Kurt Lewin

A fact-based implied fiduciary relationship doesn’t announce itself (i.e., no one’s walking around calling himself a PR or trustee), and if you asked the offending party if he or she is a “fiduciary,” you’re almost guaranteed to get an adamant NO! (followed by an indignant letter/email from his lawyer). So a big part of your job is going to revolve around explaining why your claims are even viable. To do that you’ll need a solid operative legal theory of the case.

If you’re a practicing trusts and estates litigator you’ll have this kind of theory or “sense” of the case swirling around your brain or “gut” instinctively, but you may have a hard time articulating it to your client (for purposes of developing your initial pleadings), opposing counsel (for motion-practice purposes), or, most importantly, your judge. And simply quoting from a long list of appellate decisions having the words “constructive trust” in them usually isn’t very helpful. Instead, you’ll want to find a thoughtful, well-written academic article (a rare bird indeed) that dose the initial leg work for you. When I run across one of these articles I like to hold on to them for future use, which brings me to Why Fiduciary Law Is Equitable, recently published by Harvard law professor Henry E. Smith. If you do inheritance cases for a living you’re going to run across an implied duties case sooner or later, which makes Prof. Smith’s article worth reading. Here’s the abstract as published on SSRN:

Abstract:

Fiduciary law is both celebrated as unbound by rules and deplored as unprincipled. Moralists see in fiduciary law a fixed and mandatory system, even as legal economists and contractarians have cast fiduciary law as the ultimate set of defaults to fill in incomplete contracts. Like general equity, out of which it grew, modern fiduciary law suffers from the hard times the theory of equity has fallen into, and for the same reasons. This chapter argues that a functional theory of equity – of equity as a safety valve aimed at countering opportunism – captures the character of fiduciary law. Fiduciary relationships, in which someone undertakes to act on another’s behalf by using discretion, carry more than the usual potential for opportunism. In the equitable solutions to opportunism based on proxies and presumptions, fiduciary law gets its main features. Like equity but in a more sweeping and often more categorical way, fiduciary law sets the presumption against the fiduciary when certain proxies are triggered. Thus, in situations of undisclosed conflict of interest the presumption of opportunism arises even without regard to the substance of the deal. For self-dealing likewise the presumption arises in an almost indefeasible way. Like equity generally, fiduciary law features a constrained residuum of open-endedness to deal with new and creative ways of being opportunistic. The theory of equity as targeting potential opportunism unifies the best aspects of traditional and modern theories of fiduciary law, and helps explain why fiduciary law has become so disparate and contested after the fusion of law and equity. Cut off from the special rationales of equity, fiduciary law itself threatens to become too expansive or too narrow and hidebound – like equity generally. Finally, the functional theory of equity as anti-opportunism helps explain the similarity of fiduciary law to another much misunderstood area of private law – unjust enrichment – and the relation between the two. The chapter concludes with some remarks about fiduciary law within the overall architecture of private law.

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William (Bill) Glasko of Miami, Florida was on the winning side of Golden v. Jones, — So.3d —-, 2013 WL 5810360 (Fla. 4th DCA October 30, 2013), a case I wrote about here.

For those of us lucky enough to know Bill and the rest of his colleagues at the probate power-house team of Golden & Cowan PA, it’s no surprise they were the masterminds behind this very impressive appellate court victory.  I invited Bill to share some of the lessons he drew from this case with the rest of us and he kindly accepted.

[1] What strategic decisions did you make in this case that were particularly outcome determinative at the trial-court level? On appeal?

After the Curator was appointed, we filed a Motion seeking payment of the claim on grounds that no objection had been filed, and the Personal Representative of the Broward County Estate filed a Motion to Strike the Claim based on Morgenthau and Lubee. In preparing for the trial court hearing, I knew that the law was squarely in our opponent’s favor. At that time, I heard a rumor that the RPPTL Section was considering throwing its support behind the appeal of a trial court case in west Florida that was poised to address these issues. I contacted the lawyer, who would have been the Appellant in that case, who told me that his facts fell short of a clear known creditor. Ultimately, that case did not go up. While the legal theory in opposition to Morgenthau and Lubee was clear to me, it also became clear that (a) the trial court was going to follow existing law (making appeal inevitable); and (b) the underlying facts of the case had to be crystal clear for the appellate court. We were very lucky to have, what I considered to be, perfect facts and we needed a trial court record which would make the appellate court understand very clearly at the outset that this was, beyond a shadow of a doubt, a known creditor. When I presented the case to the trial court judge, the trial court record was really made for the appellate court. As expected, the trial court judge correctly denied the relief based on the existing law before him and thankfully wrote a clear order citing the specific authority to be attacked on appeal.

[2] If you had to do it all over again, would you have done anything different in terms of framing the issues for your trial-court judge? On appeal?

No.

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

The attorney for the Guardian who filed the Statement of Claim which was the subject of this appeal is a seasoned and experienced probate practitioner. The claim was filed in January of 2009. The two primary cases interpreting this procedural anomaly upon which the trial court struck the claim were entered after the claim was filed (Morgenthau in December of 2009 and Lubee in January of 2012). The lawyer for the Guardian in this case who filed the claim had not read Morgenthau or Lubee prior to filing because they did not exist. We must all be vigilant and conscientious in maintaining a clear and current understanding of the law. And, as in this case, we must also sometimes be psychic.

Golden v. Jones, — So.3d —-, 2013 WL 5810360 (Fla. 4th DCA October 30, 2013)

So here’s the question that’s been roiling certain quarters of our probate bar for the last few years: Assuming I file my creditor claim before the 2-year post-death deadline set by F.S. 733.710 (Florida’s “statute of repose” for probate creditor claims), what’s my deadline for litigating whether or not I’m a reasonably ascertainable creditor?

The 1st and 2nd DCA’s have held a creditor forfeits his chance to argue his status as being “reasonably ascertainable” and thus his entitlement to personal service of a “notice to creditors” (vs. publication notice alone), if he doesn’t also file a motion for an extension of time under F.S. 733.702(3) within the two-year repose period of F.S. 733.710. See Morgenthau v. Estate of Andzel, 26 So.3d 628 (Fla. 1st DCA 2009); Lubee v. Adams, 77 So.3d 882 (Fla. 2d DCA 2012). In the linked-to case above, the 4th DCA split with its sister courts, reversing this trial-court order based upon the following logic: There is NO deadline for litigating a creditor’s status as being “reasonably ascertainable,” as long as the creditor gets his claim filed before the 2-year post-death deadline set by F.S. 733.710. In other words, according to the 4th DCA, a creditor doesn’t have to also file a motion for an extension of time before the 2-year post-death deadline to preserve the opportunity to litigate his status as “reasonably ascertainable.” This may sound like an esoteric point, but it ended up getting the creditors in both the Morgenthau and Lubee cases bounced out of court before they ever had a chance to argue the merits of their claims (see here, here for my take on these cases).

Here’s how the 4th DCA summed up its decision in the linked-to case above:

We hold that if a known or reasonably ascertainable creditor is never served with a copy of the notice to creditors, the statute of limitations set forth in section F.S. 733.702(1), Florida Statutes, never begins to run and the creditor’s claim is timely if it is filed within two years of the decedent’s death.

Constitutionally-Protected Property Rights:

It’s not often probate disputes turn on constitutionally-protected property rights, but this is one of them. In Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478 (1988), the U.S. Supreme Court held that where a creditor’s identity is known or reasonably ascertainable, that creditor’s constitutionally-protected due-process rights are violated if his claim is barred merely by general publication of the estate’s notice to creditors in a local newspaper (as was the practice in many jurisdictions, including Florida, before 1988); personal notice by mail or other means equally certain to ensure actual notice is the required minimum to satisfy constitutional due process concerns.

On balance then, a requirement of actual notice to known or reasonably ascertainable creditors is not so cumbersome as to unduly hinder the dispatch with which probate proceedings are conducted. Notice by mail is already routinely provided at several points in the probate process. . . . We do not believe that requiring adherence to such a standard will be so burdensome or impracticable as to warrant reliance on publication notice alone.

 In analogous situations we have rejected similar arguments that a pressing need to proceed expeditiously justifies less than actual notice. For example, while we have recognized that in the bankruptcy context there is a need for prompt administration of claims, . . . we also have required actual notice in bankruptcy proceedings. . . . Probate proceedings are not so different in kind that a different result is required here.

Id. at 491.

Our probate code put Pope’s directive into effect in F.S. 733.2121(3), which imposes a duty on all personal representatives to search out all reasonably ascertainable creditors and personally serve them with a “notice to creditors.” Once personally served, F.S. 733.702(1) tells us reasonably ascertainable creditors have until the later of the “date that is 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor,” to file their claims.

In his critique of the Morgenthau and Lubee decisions (which was quoted by the 4th DCA), Ft. Lauderdale attorney Rohan Kelley focuses on the minimum due process rights established for probate creditors in Pope, arguing that the end result of these decisions is to rob a creditor of “his day in court,” thus depriving him of his property rights “without due process.”

One might tend to dismiss Morgenthau because of its strange procedural history and the court’s apparent statutory misinterpretation and failure to consider due process requirements. However, the District Court of Appeal, Second District, subsequently cited Morgenthau with approval and decided similarly on even clearer facts. Lubee v. Adams, 77 So.3d 882 (Fla. 2d DCA 2012). Once again, no attention was given in the opinion to constitutional due process issues. Lubee recited the same mantra as Morgenthau and also cited Miller, with apparently the same misreading as the first district. The court in Lubee said: “Because he was not served with a copy of the notice to creditors, Mr. Lubee was required to file his claim in the probate proceeding within the three-month window following publication.” Lubee at 884. Of course, this misses the point of the statute, because it is not the fact of service that makes the publication date inapplicable to the beginning of the period to bar claims, it is the entitlement to service that is relevant. Mr. Lubee, like Mr. Morgenthau, was denied his day in court to show that he was ascertainable and was therefore deprived of property without due process.

See Rohan Kelley, Probate Litigation, Practice Under Florida Probate Code § 21.40 (Fla. Bar CLE 7th ed.2012) (emphasis added). For those of us left to make sense of all this, Mr. Kelley provides the following words of encouragement on the legislative front and a possible constitutional line of argument based on Pope’s due process analysis.

The Real Property, Probate and Trust Law Section of The Florida Bar is drafting proposed legislation that would reverse the results in Morgenthau and Lubee, but it is unlikely to take statutory form until summer or fall of 2014.

Until then, or until another appellate court decides the issue differently, trial courts even outside the first and second districts may also be bound to follow Morgenthau and Lubee . . . However, that may not be true as to the due process issue in Morgenthau and Lubee, because neither opinion addressed that issue and the decisions do not constitute stare decisis on that issue.

Id. (emphasis added). As predicted by Mr. Kelley, the Bar is in fact working on proposed legislation that should resolve the current split between the 4th DCA and the 1st and 2nd DCA’s, as reported by Tampa attorney Tae Kelley Bronner, in her presentation at this year’s legislative update.

The Probate Law Committee is working on a proposed statute to clarify the rights of an ascertainable creditor who has not received a notice to creditors and a new procedure to allow a personal representative to force a creditor to timely establish any rights they may have as an ascertainable creditor or strike the late filed claim. Until the legislation is completed a petition for extension of time should be filed with any claim filed after the expiration of the 3 month creditor period and the petition should be set for hearing prior to the expiration of 2 years from the decedent’s date of death to preserve all rights of the creditor and assure the creditor is provided the opportunity to establish whether their claim was timely filed.

See Practical Pointers for Probate Administration (Legislative Update 2013), by Tae Kelley Bronner. In addition to giving us all a heads up on what’s to come legislatively (as well as good practical advice to follow in the meantime), Ms. Bronner summarized her presentation for those of us who think best “visually” (like me!) in the following chart.

An “insider’s” view:

For an insider’s view of this case, you’ll want to read this interview of one of the attorneys on the winning side of the case.

 

If you make your living in and around our probate courts (or as an estate planner, doing everything possible to avoid our probate courts), you’ll find the FY 2011-12 Probate Court Statistical Reference Guide interesting reading. Below I’ve charted the “cases filed” data for three of our largest circuits/counties: Miami-Dade (11th Cir), Broward (17th Cir), and Palm Beach (15th Cir).

But numbers alone don’t tell the whole story. To understand the breadth of issues a typical probate judge contends with in an average year, below is the official definition given for each of the listed categories. Finally, as a rough measure of how busy these judges are on average, I took the total filing figure and divided it by the number of probate judges serving in each respective county.

So what’s it all mean?

In Miami-Dade – on average – each judge took on 2,742 NEW cases in FY 2011-12, in Broward the figure was even higher at 2,819/judge, with Palm Beach scoring the lowest at 1,463/judge. Keep in mind these figures don’t take into account each judge’s EXISTING case load or other administrative duties. These stat’s may be appropriate for uncontested proceedings, which likely represent 99% of the matters handled by a typical probate judge, but when it comes to that 1% of cases that are litigated, these same case-load numbers (confirmed by personal experience) make two points glaringly clear to me:

[1]  We aren’t doing our jobs as estate planners if we don’t anticipate — and plan accordingly for — the structural limitations inherent to an overworked and underfunded court system. As I’ve previously written here, one important aspect of that kind of planning should be mandatory arbitration clauses in our wills and trusts. Arbitration may not be perfect, but at least you get some say in who your judge is and what his or her minimum qualifications need to be. And in the arbitration process (which is privately funded) you also have a fighting chance of getting your arbitrator to actually read your briefs and invest the time and mental focus needed to thoughtfully evaluate the complex tax, state law and family dynamics underlying these cases (a luxury that’s all but impossible in a state court system that forces judges to juggle thousands of cases at a time with little or no support).

[2]  We aren’t doing our jobs as litigators if we don’t anticipate — and plan accordingly for — the “cold judge” factor I wrote about here; which needs to be weighed heavily every time you ask a court system designed to handle un-contested proceedings on a mass-production basis to adjudicate a complex trial or basically rule on any technically demanding issue or pre-trial motion of any significance that can’t be disposed of in the few minutes allotted to the average probate matter.

FY 2011-12 Probate Court Filing Statistics

Type of Case Miami-Dade (11th Cir) Broward (17th Cir) Palm Beach (15th Cir)
Probate 3,659  3,887  4,337
Baker Act  4,706  3,034  1,185
Substance Abuse 796  701  855
Other Social Cases 902  366  251
Guardianship 845  395  465
Trust 59  74  222
Total 10,967  8,457  7,315
# Judges 4  3  5
Total/Judge 2,742  2,819  1,463

Glossary: 

Probate: All matters relating to the validity of wills and their execution; distribution, management, sale, transfer and accounting of estate property; and ancillary administration pursuant to chapters 731, 732, 733, 734, and 735, Florida Statutes.

Guardianship (Adult or Minor): All matters relating to determination of status; contracts and conveyances of incompetents; maintenance custody of wards and their property interests; control and restoration of rights; appointment and removal of guardians pursuant to chapter 744, Florida Statues; appointment of guardian advocates for individuals with developmental disabilities pursuant to section 393.12, Florida Statutes; and actions to remove the disabilities of non-age minors pursuant to sections 743.08 and 743.09, Florida Statutes.

Trusts: All matters relating to the right of property, real or personal, held by one party for the benefit of another pursuant to chapter 736, Florida Statutes.

Florida Mental Health Act or Baker Act: All matters relating to the care and treatment of individuals with mental, emotional, and behavioral disorders pursuant to sections 394.463 and 394.467, Florida Statutes.

Substance Abuse Act: All matters related to the involuntary assessment/treatment of substance abuse pursuant to sections 397.6811 and 397.693, Florida Statutes.

Other Social Cases: All other matters involving involuntary commitment not included under the Baker and Substance Abuse Act categories. The following types of cases would be included, but not limited to:

  • Tuberculosis control cases pursuant to sections 392.55, 392.56, and 392.57, Florida Statutes;
  • Developmental disability cases under section 393.11, Florida Statutes;
  • Review of surrogate or proxy’s health care decisions pursuant to section 765.105, Florida Statutes, and rule 5.900, Florida Probate Rules;
  • Incapacity determination cases pursuant to sections 744.3201, 744.3215, and 744.331, Florida Statutes;
  • Adult Protective Services Act cases pursuant to section 415.104, Florida Statutes.
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In the right circumstances, no-contest or in terrorem clauses can be effective tools to ward off wasteful inheritance litigation. Here’s the problem: these clauses are unenforceable in Florida for public policy reasons, as explained by the 5th DCA in the Dinkins case linked-to below:

Under a no contest clause, in order to receive the devise, the beneficiary must forfeit the right to contest the instrument. But that right is essential to the integrity of the estate disposition process, because beneficiaries must be able to obtain, and courts must be able to provide, a determination of the instrument’s validity. Cf. Restatement (Third) of Prop.: Wills & Don. Trans. § 8.5 cmt. b, para. 2 (2003). Thus, a beneficiary cannot be forced to choose between the right to contest an instrument and the right to take under it, and this public policy is codified in section 736.1108(1) and its probate analogue, section 732.517.

Give heirs a choice: Rewards vs. Penalties

Even though no-contest clauses are unenforceable, if the risk of litigation is high, a smart client working with thoughtful lawyers may be able to achieve much of the same result by employing a reverse approach; flipping this penalty-based forfeiture clause into a rewards-based conditional gift.

For example, the client could include a will provision providing that, “If my heir does not contest this will for at least two years and a day following admission of this will to probate she receives an additional [$____].” This clause doesn’t take something away if a contest occurs (a penalty), but instead gives something extra if the heir doesn’t contest the will (a reward). That is, instead of imposing a condition subsequent (taking away something already given if a condition is subsequently breached), this type of clause imposes a condition precedent (giving something extra if a condition is previously satisfied).

As discussed in an article by Prof. Gerry Beyer entitled Manipulating the Conduct of Beneficiaries with Conditional Gifts (which I previously wrote about here), courts are much more likely to enforce conditional gifts subject to conditions precedent (a reward) vs. conditions subsequent (a penalty). And in fact this was the approach used — successfully — in the following case.

Case Study

Dinkins v. Dinkins, — So.3d —-, 2013 WL 3834371 (Fla. 5th DCA July 26, 2013)

According to the 5th DCA, this case involved an estate with with a value “estimated at $24–55 million.” In order to incentivize his surviving spouse NOT to file an elective-share claim, the decedent included the following $5 million conditional-gift clause in his trust:

Conditional Specific Bequest of Cash. If my spouse, JEANETTE M. DINKINS, survives me, and if she or her legal representative makes a valid disclaimer of all of her interest in the QTIP Trust created under Article VII of this Trust Agreement, and also makes a valid waiver of her right … to elect the elective share in my estate, then the Trustee shall distribute five million dollars ($5,000,000.00) to JEANETTE M. DINKINS, outright and free of trust…. My objective is to provide five million dollars ($5,000,000.00) of assets to JEANETTE M. DINKINS, in addition to … any … property to which JEANETTE M. DINKINS is entitled as a result of my death, except for the Elective Share.

This clause doesn’t take something away from surviving spouse she’s already received if she subsequently makes an elective-share claim, but instead rewards her with an extra $5 million gift for not previously making this claim. In other words, this is a gift subject to a condition precedent, not a condition subsequent.

Another important fact: according to the 5th DCA this clause provided surviving spouse with “the ability to choose an option at least as valuable as the statutory minimum.” So at least facially there’s economic parity here. Both points are important: the form of the clause (a reward vs. a penalty) and its economic substance bode well for enforcement.

Surviving spouse was unconvinced, and argued that the provision was unlawful because it penalized her for taking her elective share by causing her to forfeit the $5 million conditional gift. At trial the reward-based clause worked; the trial court rejected spouse’s argument, concluding that the provision did not penalize her for taking her elective share. Good call says the 5th DCA, here’s why:

[U]nder a clause providing an alternative to a statutory minimum benefit, to receive the alternative devise, the beneficiary must forfeit the right to receive the statutory benefit. The purpose of statutory minimum benefits is generally to ensure that surviving family members are provided for and do not become dependent on the public treasury, regardless of the decedent’s intent.[FN1] Cf. Via v. Putnam, 656 So.2d 460, 462 (Fla.1995); In re Estate of Reed, 354 So.2d 864, 865 (Fla.1978); In re Estate of Magee, 988 So.2d 1, 5–6 & n. 3 (Fla. 2d DCA 2007); 80 Am.Jur.2d Wills § 1396 (2013). This purpose is not thwarted by providing an optional alternative devise, because the beneficiary is free to reject it for any reason, including that it is less valuable than the statutory benefit. The purpose of the statutory benefit is satisfied, because the beneficiary has the ability to choose an option at least as valuable as the statutory minimum. Therefore, unlike a no contest clause, an alternative devise clause does not undermine the purpose of the legal right forfeited, and thus does not penalize the beneficiary for purposes of section 736.1108(1). Cf. Restatement (Second) of Prop.: Don. Trans. § 10.2 (1983).

[FN1.] Statutory minimum benefits include such items as homestead, Art. X, § 4(c), Fla. Const.; elective share, §§ 732.201–.2155, Fla. Stat.; and family allowance, § 732.403.

Lesson learned? Thoughtful, creative drafting saves the day.