In re Guardianship of Graham, — So.2d —-, 2007 WL 2189111 (Fla. 4th DCA Aug 01, 2007)

In the linked-to case two brothers were feuding over whom would be appointed mom’s guardian.  The brother that lost, ‘Larry," decided to take matters into his own hands after the trial court ruled against him.
 

After the trial court appointed the guardian, Larry surreptitiously took Betty from the residence where she had been placed by the guardian and moved her to California without giving notice to the court or any of the parties. The trial court held Larry in indirect criminal contempt for removing Betty from Florida and otherwise defying the guardianship orders. Larry has refused to reveal his exact whereabouts as well as the whereabouts of his mother.

Adding insult to injury, Larry managed to find a lawyer who was audacious enough to argue that since Larry had essentially kidnapped his mom and taken her out of Florida . . . the Florida court system no longer had any authority over her.

The attorney .  .  .  argued that the court was required to dismiss the guardianship proceedings because the ward could not be located after diligent search. See Fla. Prob. R. 5.680(a). When the court asked, “But we have the ability to know where the ward is; don’t we?” The attorney responded, “But she’s not-she’s not-they didn’t until I divulged that.” That same attorney has continued to argue in this proceeding that the guardianship proceedings must be dismissed because Betty is no longer in Florida.

The trial court of course rejected Larry’s ludicrous argument, and the 4th DCA affirmed.

Lesson learned:

First, in contested guardianship proceedings, always expect the unexpected.  Second, if the other side goes completely crazy, remember the trial court’s contempt powers.  Finally, if you’re involved in a legitimate proceeding where there are legitimate reasons for moving a ward to another state, make sure you remember that Florida Statutes section 744.2025(1) requires a guardian to obtain prior court approval before removing the ward from the state.  Here’s how the procedural steps involved in a change of domicile were summarized in the linked-to case:
 

The statutes provide for termination of a guardianship upon a change in domicile of the ward where another state has appointed a guardian, but the statute requires that the change in domicile be accomplished by the legal guardian with prior approval of the court. § 744.524, Fla. Stat. (2006) (providing for termination of guardianship when the domicile of a ward has changed as provided in section 744.2025). The petition does not suggest that California has appointed a guardian for Betty and clearly the circuit court has not approved Betty’s change in domicile. See also Fla. Prob. R. 5.670 (setting forth the procedure for terminating a guardianship on change of domicile of a ward and requiring the Florida guardian to file a petition for discharge); cf. In re Guardianship of Gechtman, 719 So.2d 960 (Fla. 4th DCA 1998).

The saying "truth is stranger than fiction" didn’t originate in a trusts-and-estates case (see here) . . . but it should have. 

For example, say you went to a movie and the plot line revolved around a brilliant but eccentric MIT professor who allegedly staged his own "hit" by two masked men with Russian accents then blamed his son in order to gain the upper hand in litigation involving a family trust.  You’d say "no way, that could never happen."  And you’d be wrong.  As reported in Former MIT professor headed to trial in allegedly staged shooting that’s exactly the real life drama currently playing itself out in a Boston courtroom:

CAMBRIDGE, Massachusetts (AP) — What the former MIT professor and wealthy businessman told police sounded like a scene from a bad spy novel: He was shot by two masked men with Russian accents, and saved only because two of the bullets bounced off his belt buckle.

Five months later came the indictment — against him.

Prosecutors say John J. Donovan Sr. staged his own shooting to gain an advantage in a legal battle with his own children for control of trusts that he claims are worth at least $180 million. He’s accused of trying to get back at his oldest son by falsely accusing him of hiring his would-be killers.

*     *     *     *     *
Donovan is charged with filing a false police report, a misdemeanor that carries a maximum one-year sentence. His trial is scheduled to begin Friday in Middlesex Superior Court.

"John Donovan repeatedly provided false information to police about a crime that did not occur in order to ‘frame’ his son for a crime his son did not commit and had no part in," prosecutors claim in court documents.

*     *     *     *     *

During the 911 call Donovan made from his cell phone after the shooting, he told a state police dispatcher that his son James, now 40, "laundered $180 million" and had threatened to kill him.

Prosecutors say Donovan made up the story to exact revenge, but his lawyer Barry Klickstein calls Donovan "the innocent victim of a violent crime."

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As technology races ahead in the development of new forms of assisted reproductive technology, the courts are struggling to keep up.  From a probate litigation standpoint, the question is what legal rights – if any – does a child both born and conceived after the father’s death have?  In an article entitled Posthumous Reproduction, Prof. Charles P. Kindregan, Jr., of Suffolk University Law School in Boston, described the legal landscape this way:

Until very recently, legal issues surrounding posthumous children focused on inheritance rights of a child who was conceived while the biological parents were alive with the child being born after the death of the father. The law largely deals with this problem by providing for the legal heirship of children born within the normal gestational period following the death of the father. But the development of such technologies as intrauterine insemination, in vitro fertilization, surrogacy, cryopreservation of gametes and embryos and (someday) human reproductive cloning have created the potential for an entirely different set of legal issues. These issues are not based on the birth of a child after the death of the father when the child is conceived prior to the father’s death. Instead, the new reality is based on conceiving a child or implanting a preexisting embryo after the death of a genetic parent or parents. This article explores some of the evolving issues created by the use of cryopreserved gametes and embryos after the death of one or both gamete providers.

In Florida, F.S. 732.106 tells us that a child conceived prior to a parent’s death but born after the parent’s death has the same inheritance rights as any other child, be it as an intestate heir or as a beneficiary of the parent’s will.

Posthumous Conception

On the other hand, F.S. 742.17(4) tells us that a child both conceived and born after the parent’s death, known as “posthumous conception,” can qualify as a beneficiary of the parent’s will if “the child has been provided for by the decedent’s will.” In other words, in cases involving posthumous conception the after-born child gets nothing unless there’s a clause in a will saying otherwise. There’s no equivalent statute for trusts, but logically the same rule should apply.

As of the date of this blog post we have no Florida appellate-court authority giving us any guidance on how a will or trust should be construed in a case involving a posthumously conceived child. Fortunately we now have an excellent opinion out of New York to help fill that gap, as discussed in DEFINITIONS OF CHILDREN AND DESCENDANTS: CONSTRUING AND DRAFTING WILLS AND TRUST DOCUMENTS. Here’s an excerpt:

Although most of the cases have been brought to determine eligibility for social security benefits, at least one case determined that posthumously conceived children were children of their deceased father for purposes of a trust. In [In re Martin B., 841 N.Y.S.2d 207 (N.Y. Sup. Ct. 2007)], the settlor created seven trusts for his wife and “issue.” During his wife’s life, the trustee had the power to distribute principal among the issue, so the trustee brought a construction proceeding to determine whether grandchildren conceived posthumously were issue within the meaning of the terms of the trust.

When the settlor died, his wife and one of his two sons survived him. His other son, James, died of Hodgkins Lymphoma a few months before his father. When James was diagnosed, he was married but had no children. He deposited sperm, with instructions that it be cyropreserved and that if he died, it should be held subject to his wife’s direction. James died January 13, 2001, and a few years later his wife conceived two children through in vitro fertilization using the cyropreserved sperm. The two boys were born October 15, 2004 and August 14, 2006.

The surrogate’s court reviewed New York’s statutes relating to inheritance by posthumously conceived children as takers under intestacy or under wills. New York law limits inheritance rights to children conceived during the decedent parent’s life, both for intestacy purposes and for purposes of a will. Although these statutes did not include the posthumously conceived grandchildren, the court did not find the statutes dispositive with respect to the trusts. The important consideration, according to the court, was the settlor’s intent when he created the trusts. The court conceded that the settlor would not have imagined in 1969 that his son might have children related to him genetically but conceived after his death. However, the court noted, “the absence of specific intent should not necessarily preclude a determination that such children are members of the class of issue.” The court used the Restatement of Property as support for its finding that the children were members of the class within the terms of the trust. The court quoted the [RESTATEMENT (THIRD) OF PROP.: WILLS AND OTHER DONATIVE TRANSFERS § 14.8 (2003)] as follows:

[U]nless the language or circumstances indicate that the transferor had a different intention, a child of assisted reproduction [be] treated for class-gift purposes as a child of a person who consented to function as a parent to the child and who functioned in that capacity or was prevented from doing so by an event such as death or incapacity.

The court concluded that the settlor “intended all members of his bloodline to receive their share.” The court held that the two boys were issue and descendants for purposes of the trusts and pointed out the need for the legislature to address issues raised by biotechnology.

Greene v. Borsky, — So.2d —-, 2007 WL 2119215 (Fla. 4th DCA Jul 25, 2007)

Whether a particular type of order is subject to appeal can have a huge impact on how a case is litigated.  In this case, the issue was whether a trial court’s order permitting trustees to pay their legal fees with assets of the trust was subject to appeal.  The 4th DCA said YES.  Thankfully!

Here’s how the 4th DCA explained it’s ruling:

The orders in this case are appealable non-final orders under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii). Rule 9.130(a)(3)(C)(ii) provides that appealable non-final orders include those that determine “the right to immediate possession of property .” This Court has previously held that a sum of money is property to which Rule 9.130(a)(3)(C)(ii) can apply. In Florida Discount Properties, Inc. v. Windermere Condominium, Inc., 763 So.2d 1084 (Fla. 4th DCA 1999), a lessor filed a motion to have disputed rent paid into the registry of the court. Id. at 1084. The trial court denied the motion, and the lessor appealed. Id. On appeal, this Court concluded that the order was an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii), because it determined “the right to immediate possession of property, i.e., the rent payments.” Id. Likewise, in the present case, the trial court orders determined the right to immediate possession of property, here trust assets to be used by trustees to pay for attorney’s fees and witness fees expended in defense of the trust. As such, we conclude that this Court possesses jurisdiction over this appeal under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii) and affirm in all respects without further comment.

Careful readers of this blog will recognize the name of one of the attorneys on the winning side of the linked-to case: Amy B. Beller of Miller & O’Neill, P.L.  (see here for prior post).  Well done Amy.

Kristen D. Drake, JD, CFP, publishes Coast Law, LLC, an excellent Florida-specific blog focusing on estate planning matters.  Her goal is to is to build a "One-Stop Florida Homestead reference page," and she’s off to a great start.  For example, in her blog post entitled Homestead Descent Examples she provides a link to homestead-related case studies prepared by Bruce Stone, one of Florida’s most well regarded estate planning attorneys.  Here’s the post in its entirety:

Sometimes the best way to understand a complicated issue is with examples. Bruce Stone, a prominent estate planning attorney in Florida (more about Mr. Stone here), presented "What Every Georgia Trusts and Estates Practitioner Needs To Know About Florida Law" and included some excellent homestead descent examples in his materials. He was kind enough to let us post them here. Test your knowledge of homestead descent with these great examples.

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Big firms have been shedding their trusts and estates practice groups for decades.  But those that still have them apparently populate them with the most interesting lawyers at the firm.  At least that’s what I gather from reading Undue Influence: The Epic Battle for the Johnson & Johnson Fortune, by David Margolick.  Here are two gems from his book:

“[A]t Shearman & Sterling as at most large firms, the individual-clients group was a loss leader, a service the firm extended to plutocratic executives, but a gilded graveyard for those lawyers — eccentrics, aristocrats, gays, fops, women — who traditionally congregated in them.”

“[Sullivan & Cromwell’s] probate department was small and idiosyncratic, inhabited by the usual collection of oddballs, geniuses, and women.  It was the only place at the firm where one could be an associate in perpetuity and eccentric with impunity.”

As a member of the trusts-and-estates slice of the legal clan myself, I love this description (and hope it’s true!). Anyway, for those of us hoping to glean a bit of wisdom from the follies of our peers, this book doesn’t disappoint. I highly recommend it. And I’m not the only one. Here’s an excerpt from The Band-Aid War, a NYT’s review of the book:

ON one side was strong-willed Barbara (Basia) Piasecka Johnson, a farmer’s daughter who had only $200 in her pocket when she left Poland in 1967. One of the world’s wealthiest widows, she still bought lottery tickets and made her bodyguard use discount coupons when she sent him to Dunkin’ Donuts.

On the other side were Mrs. Johnson’s six grown stepchildren — the querulous progeny of J. Seward Johnson, an heir to a fortune earned by Band-Aids, who lavished more attention on his prize Holsteins than on his unhappy family. The grand prize: the $402,824,971.59 that Johnson left behind when he died in 1983. Although he had set up handsome trusts for each of his children, his two sons and four daughters wanted more, and Mrs. Johnson, his principal beneficiary, had sworn not to give them “the dust off half a penny.”

As told by David Margolick in “Undue Influence: The Epic Battle for the Johnson & Johnson Fortune,” their face-off was an unsavory (and perversely entertaining) exercise in absurdity. Mr. Margolick calls the will contest “the largest, costliest, ugliest, most spectacular and most conspicuous in American history.”

Last year I wrote here about a case out of the 3d DCA that had me puzzled.  The 2006 case was a will contest involving allegations of "insane delusion".  I couldn’t reconcile the 3d DCA’s apparent retreat from the extremely tough "lucid interval" standard generally applicable to testamentary capacity cases.

What the 3d DCA failed to explicitly state was that lack of testamentary capacity can be established in two ways: (1) general incapacity (governed by the insane-delusion standard) or (2) by establishing some specific and narrower form of insane delusion that is the direct cause of the invalid will.  This second testamentary-capacity line of attack is worth remembering.


As if on cue, professor Bradley E.S. Fogel of St. Louis University School of Law just published an article in the Spring 2007 edition of the ABA’s Real Property, Probate and Trust Journal providing an excellent summary of the law governing insane-delusion will contests.  The article is entitled THE COMPLETELY INSANE LAW OF PARTIAL INSANITY: THE IMPACT OF MONOMANIA ON TESTAMENTARY CAPACITY.  Here’s the editor’s synopsis of his article:

In this Article, the author discusses the doctrine of monomania, which permits a court to invalidate a will based on the testator’s insane delusion if that insane delusion caused the testator to dispose of his property in a way that he otherwise would not have. The author argues that the monomania doctrine is fatally flawed and that the doctrine should be abandoned in favor of using the general test for capacity to make all testamentary capacity decisions.

The next meeting of the Probate and Trust Litigation Committee is scheduled for Thursday, August 2 at The Breakers in Palm Beach from 4 p.m. to 6 p.m.  If you have any questions regarding this meeting, you should contact the committee chair directly: William T. Hennessey.

The meeting materials copied here contain white papers addressing the following probate-litigation related issues:

  • Fiduciary Lawyer-Client Privilege: Approved by EC [ITEM 3].
  • Payment of trustee’s fees from trust assets: Approved by EC [ITEM 4]
  • Crafting an appellate rule on which Orders are Appealable in a Probate Proceeding? Sean Kelley, Tom Karr, Peter Sachs [ITEM 5]
  • Collateral Attack on the Validity of A Marriage after Death Based Upon Undue Influence John Moran, Bill Hennessey, Laura Sundberg, Russ Snyder [ITEM 6]
  • Revisions to Rule 1.525 concerning 30 day time limit for filing a motion for attorneys’ fees[ITEM 7] Angela Adams, Eric Virgil,Laura Sundberg
  • ACTEC Model Arbitration Legislation. [ITEM 8]. Bob Goldman

I previously wrote here about a case where an ex-spouse was the windfall beneficiary of insurance benefits because her ex had the audacity of dying after their divorce but before getting around to revising his insurance beneficiary designation forms (it’s always the little things that get you!).  This outcome probably seemed unfair to many (except the ex), including Stetson Law student Suzanne Soliman, who just published A Fair Presumption: Why Florida Needs a Divorce Revocation Statute for Beneficiary-Designated Nonprobate Assets, in 36 Stetson L. Rev. 397 (2007).  Here’s an excerpt:

Like many Americans, Floridians invest significantly in beneficiary-designated nonprobate estate planning tools such as life insurance. These types of assets comprise the bulk of many Floridians’ estate plans because they are easy to obtain and, in many instances, affordable compared to other estate planning tools. It is important to effectuate the policyholder’s intent, particularly because so many families trust that these assets will provide some degree of security. Enacting a divorce revocation statute to protect nonprobate assets will provide protection and security for many Florida families.

Special thanks to the Wills, Trust & Estates Prof Blog for posting here on this article.

Taylor v. Maness, 941 So.2d 559 (Fla. 3d DCA Nov 15, 2006)

Property rights vs. homestead rights: which wins out in litigation involving homestead property?  That’s a no-brainer: homestead rights trump property rights any day of the week.  The linked-to case underscores this general principal by applying it to a real live set of facts with very real economic consequences riding on how the court ruled.

Does the deed control? NO

In this case husband (but not wife) signed a sales contract for the sale of his homestead property located on Marathon Key, Florida (think VERY EXPENSIVE real estate!).  The house was deeded in husband’s name alone.  Wife was not consulted, and refused to sign a deed effectuating the sales contract.  Buyer sued to enforce the sales contract.  But buyer didn’t just want damages, he also wanted the court to specifically enforce the contract.  Court said NO WAY, and it didn’t matter that wife’s name wasn’t on the deed.  Why? Because spouse’s homestead rights trump all else.  The following excerpts should be enough to make the point:

The undisputed facts, which were before the trial court, are as follows. Mr. and Mrs. Maness were married on June 14, 1986. Sometime in September 1986, Mr. Maness purchased a vacant lot located at 180 Ana Court, Marathon, Monroe County, Florida, which was titled solely in the name of “James G. Maness, as a married man” (“Marathon Property”).     .     .     .     .     On or about September 25, 2002, Mr. Maness, as the seller, and the Taylors, as the purchasers, entered into a contract, whereby Mr. Maness agreed to convey the Marathon Property to the Taylors. Mrs. Maness did not execute the contract, nor was she named in the contract. Closing was to take place on or before December 2, 2002. Mrs. Maness, however, refused to execute the deed transferring the Marathon Property to the Taylors, claiming that she has a homestead interest in the Marathon Property, thereby precluding consummation of the contract.

*     *     *     *     *
In reaching our conclusion, we wish to address Mrs. Maness’ homestead interest in the Marathon Property. The Taylors correctly point out that Mrs. Maness is not the title owner of the Marathon Property. However, the individual claiming the homestead exemption need not hold fee simple title to the property. Callava v. Feinberg, 864 So.2d 429, 431 (Fla. 3d DCA 2003). Article X, section 4 “does not designate how title to the property is to be held and it does not limit the estate that must be owned, i.e., fee simple, life estate, or some lesser interest.” Stilwell, 810 So.2d at 569. Thus, even if Mrs. Maness owns only a beneficial interest in the Marathon Property, she is entitled to claim a homestead exemption to the forced sale of the property. See Callava, 864 So.2d at 431 (holding that even if divorced wife only owned a beneficial interest and not title interest in the residence constituting her homestead, she was nonetheless entitled to claim a homestead exemption from the forced sale of the property).

Lesson learned:

Former U.S. Secretary of Defense Donald Rumsfeld once famously said that it was the "unknown unknowns" that worried him most (see here for the You Tube version).  In litigation involving homestead real property, simply reading the deed tells you very little about the principal issue driving the case.  Knowing this unstated fact in advance may make all the difference in the world.  If your opponent is unaware of this fact, he or she is about to learn why the "unknown unknowns" are the scariest part of practicing law.