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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bonus Material

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

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

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


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

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

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

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

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

Must a probate judge enforce a settlement? NO

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

Here again from Enforcement of Settlements: A Jurisdictional Perspective:

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

Case Study 

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

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

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

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

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

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

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

Did the estate waive this defense? NO

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

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

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

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

What’s the takeaway?

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

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


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

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

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

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

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


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

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

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

Enter the new Florida Uniform Directed Trust Act (FUDTA)

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

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

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

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

And yes, we’re talking about trust protectors

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What about the rest of FUDTA?

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

Case Study No. 1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Case Study No. 2

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

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

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

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

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

Unlawful restraint on marriage?

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

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

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

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

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

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

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

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

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

What’s the takeaway?

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

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


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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 …