It couldn’t happen to a better guy.  In the midst of all the antics surrounding the proceedings to determine custody of Anna Nicole Smith’s body one calm professional stood out: Akerman Senterfitt’s Richard C. Milstein.

I know Richard only casually from bar functions.  However, he’s known as a true gentlemen and professional in every sense of the word.  Richard makes us all look good.  So perhaps it shouldn’t be surprising that he’s getting some great national press in Akerman Attorney Is ‘the Calm’ in Media Storm Over Anna Nicole Smith Case.  Here are a few excerpts from the linked-to story:

Seidlin granted the power to decide where Smith will be buried to Richard C. Milstein, an Akerman Senterfitt attorney who was appointed last week as guardian ad litem for Smith’s 5-month-old daughter, Dannielynn Hope Marshall Stern.

*     *      *     *     *

Milstein, who has avoided the spotlight, left the courthouse through a side exit and went straight to his car without making any statements.

Throughout the hearings the dapper and mild-mannered Milstein seemed above the fray as the proceedings quickly degenerated into a circus-like atmosphere.

*     *      *     *     *

Those who know Milstein said he was the perfect lawyer for the job.

"He is always the calm in the middle of many storms," said Milstein’s friend Jorge Mursuli, the executive director of People for the American Way in Florida. "What a perfect choice amongst the circus to have someone so deeply committed to child-advocacy issues and not interested in self-serving press."

Miami attorney Valdespino said Milstein "wouldn’t be influenced by the glitz."

Harding v. Rosoff, — So.2d —-, 2007 WL 461381(Fla. 4th DCA Feb 14, 2007)

This is the second appellate opinion arising out of this piece of probate litigation.  I wrote about the first appeal here.  In this sad case a 95 year old woman inadvertently failed to comply with the technical  requirements necessary to effectively exercise a power of appointment she had under a trust created by her brother over 30 years ago.

The default beneficiary under brother’s trust sued the probate estate over the attempted exercise of the power of appointment and won.  Rather than being content with this win, default trust beneficiary then sued the personal representative of sister’s estate for attorneys’ fees.  The trial court said NO WAY, and the 4th DCA agreed as follows:

  • Court: You can’t sue someone else’s personal representative for breach of fiduciary duty:

The personal representatives argue that there can be no surcharge, which is a charge against a fiduciary to compensate a beneficiary for the breach of fiduciary duty, Merkel v. Guardianship of Jacoby, 862 So.2d 906 (Fla. 2d DCA 2003), because there was no fiduciary duty to Harding. They point out that they are fiduciaries only of the Teresa Rosoff estate and that Harding is not a beneficiary of that estate. Harding is a beneficiary of the Molinari Trust, but the personal representatives are not fiduciaries of the trust. We are not persuaded by Harding that there is a fiduciary duty to her, but we need not decide that issue because the pursuance of the litigation by the personal representatives was consistent with the testator’s intent. Although they lost and we affirmed, we noted that “Teresa’s apparent intent has been thwarted.” Rosoff, 901 So.2d at 1010. The trial court was correct in finding no impropriety by the personal representatives.

  • Court: You don’t get fees for thwarting the testatrix’s intent:

Harding also contends that she should have been awarded attorney’s fees and costs for prevailing in the litigation under section 733.106, Florida Statutes (2005), because the litigation benefited the estate. In re Estate of Udell, 501 So.2d 1286 (Fla. 4th DCA 1986). Harding has cited no cases, however, which would support her theory that there was a benefit to the estate under these specific facts. She relies on In re Estate of McCune, 223 So.2d 787 (Fla. 4th DCA 1969), in which we stated that services which carry out the intent of the testator as expressed in the will are compensable from the estate. As we previously noted, however, this litigation thwarted the testator’s intent. Harding also cites Robinson v. Robinson, 805 So.2d 94 (Fla. 4th DCA 2002), in which this court affirmed an award of attorney’s fees to a beneficiary who successfully reformed a trust. In Robinson, however, the fees were awarded from the trust, not the estate. Under these facts, in which the litigation determined only who would be the beneficiary of the Molinari Trust, the trial court did not err in finding that there was no benefit to the estate.

Broward Circuit Court Judge Larry Seidlin surprised everyone by ruling from the bench today.  Here’s the latest from the Boston Globe:

FORT LAUDERDALE, Fla. –Anna Nicole Smith will be buried in the Bahamas, alongside her dead son, it was announced Thursday after a tearful judge left the decision up to the attorney for the model’s baby daughter.

Richard Milstein, the court-appointed lawyer for 5-month-old Dannielynn, announced the plans not long after a judge gave him control of Smith’s final resting place. He gave no timeframe for the burial.

*     *     *     *     *
The judge, who choked up frequently and sometimes blubbered as he explained his decision, compromised and gave custody to Milstein. And the judge made it abundantly clear what he felt should be done.

"I want her buried with her son in the Bahamas," he said through tears. "I want them to be together."

By the way, choking up, "blubbering," speaking through tears, is not exactly the court-room demeanor one would expect from a veteran trial judge.  But then again, Judge Seidlin’s performance in this case has become a topic of discussion all on its own.  Here’s what this Miami Herald report had to say:

He’s become something of a national spectacle for his role as Anna Nicole Smith’s probate judge, with his colleagues snickering about his courtroom demeanor and with national legal analysts deriding his professional judgment.

But Broward Circuit Court Judge Larry Seidlin has been taking it all in stride, keeping in daily contact with the county’s chief judge and refusing to let the criticism stop him from long soliloquies and other courtroom antics.

Thanks to Alachua, FL attorney Jane E. Hendricks for alerting me to this latest breaking news.

Matsumoto v. American Burial and Cremation Services, Inc., — So.2d —-, 2006 WL 3733310, 32 Fla. L. Weekly D26 (Fla. 2 DCA Dec 20, 2006)

In light of the ongoing litigation involving conflicting claims for custody of Anna Nicole Smith’s body (see here), the linked-to case seems especially timely (thanks to Alachua, FL attorney Jane E. Hendricks for pointing it out to me).

The linked-to case answers two questions that can be expected to come up from time to time in a probate practice.  After the publicity the Anna Nicole Smith case is bringing to litigation involving control of a decedent’s body, these questions may come up with more frequency.

  • Question 1: Can you sue someone for causing you emotional pain and suffering over the disposition of a family member’s dead body?  Answer: YES.  Here’s how the 2d DCA described this particular tort:

Ms. Matsumoto sued the appellees in June 2003, claiming that they tortiously interfered with the body of her deceased father, Lenzo Chavis. Her pleading and her trial theme more accurately reflect a tort claim for outrageous conduct causing severe emotional distress. See, e.g., Smith v. Telophase Nat’l Cremation Soc’y, Inc., 471 So.2d 163 (Fla. 2d DCA 1985) (acknowledging Florida’s recognition of tort of intentional infliction of emotional distress caused by extreme and outrageous conduct in handling of cremation); Williams v. City of Minneola, 575 So.2d 683, 690-91 (Fla. 5th DCA 1991) (holding that cause of action lies in tort for infliction of emotional distress by outrageous conduct involving dead body); Baker v. Fla. Nat’l Bank, 559 So.2d 284, 287 (Fla. 4th DCA 1990) (recognizing that claim for intentional infliction of emotional distress and “tort of outrageous conduct” are the same claim).

  • Question 2:  Does a funeral home have an affirmative duty to find the next of kin with highest priority under Florida law when seeking authority to cremate a decedent’s body?  Answer: NO. According to the 2d DCA Florida Statutes section 470.002(18) [now repealed] specifies the priority of persons who may direct the disposition of the decedent’s body.  Under this statute, a decedent’s child has priority over a brother or sister.  In the linked-to case the decedent’s estranged daughter claimed the funeral home should have tried to locate her prior to following the directions of the decedent’s brother.   The 2d DCA rejected her claim as follows:

Ms. Matsumoto .  .  .  urges us to graft upon the statute a requirement that the funeral home undertake a diligent search for the closest next of kin if their whereabouts are unknown by those lower in priority under the statute. She suggests that the funeral home must make a good faith effort, similar to that required for constructive service of process, to locate the unavailable next of kin. See § 49.041(1), Fla. Stat. (2002). The statute does not impose a due diligence requirement on funeral homes. Nor does it require funeral homes to provide others with higher priority notice of a family member’s death. We decline to impose such obligations on the funeral home.

EHQF Trust v. S & A Capital Partners, Inc. , — So.2d —-, 2007 WL 45838 (Fla. 4th DCA Jan 09, 2007)

I wrote here about a 2006 opinion out of the 5th DCA addressing Florida Rule of Probate Procedure 5.030(a), which, subject to limited exceptions, requires Florida guardians and personal representatives to be represented by counsel.  There’s no such rule for Florida trustees.  However, the 4th DCA came to the same conclusion with respect to trustees based on the following rationale:

The notice of appeal filed by appellant, a trust, was not signed by an attorney licensed to practice law in Florida. Section 454.23, Florida Statutes (2006), prohibiting the unlicensed practice of law, provides no exception for representation of a trust. Although Florida has not previously addressed the issue, other states have concluded that a trustee cannot appear pro se on behalf of the trust, because the trustee represents the interests of others and would therefore be engaged in the unauthorized practice of law. Curry v. Kilgore, 2004 UT App. 112 (Utah Ct.App.2004); Ziegler v. Nickel, 64 Cal.App.4th 545, 75 Cal.Rptr.2d 312 (Cal.2d 1998); Life Science Church v. Shawano County, 221 Wis.2d 331, 585 N.W.2d 625 (Wis.Ct.App.1998); Mahoning County Bar Ass’n v. Alexander, 79 Ohio St.3d 1220, 681 N.E.2d 934 (Ohio 1997); Beaudoin v. Kibbie, 905 P.2d 939 (Wyo.1995); Back Acres Pure Trust v. Fahnlander, 233 Neb. 28, 443 N.W.2d 604 (Neb.1989); In re Ellis, 53 Haw. 23, 487 P.2d 286 (Haw.1971).

It is therefore ordered that this appeal will be dismissed unless appellant files an amended notice of appeal signed by an attorney licensed to practice law within twenty days of this order. This appeal is stayed pending compliance with this order.

The NY Times published an interesting Op-Ed piece by Stephanie Coontz entitled Illegitimate Complaints that does a good job of highlighting how “traditional” family values were historically very harsh on out-of-wedlock or “bastard” children. Generally accepted notions of the rights of lineal descendants – irrespective of whether or not the parents were married – have changed dramatically over the last hundred years or so.

The harsher aspects of the common law dealing with an illegitimate child have been eliminated in all states, primarily through the application of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution (see here for discussion).  Florida codified its approach to persons born out of wedlock in F.S. 732.108.

Here are a few excerpts from the linked-to NY Times piece:

PITY poor little Dannielynn, just 5 months old and already the potentially multimillion-dollar prize in a paternity battle waged by three of the unsavory men who partied with her mother, Anna Nicole Smith, in the last years of her troubled and tawdry life. There’s an even creepier fourth potential candidate: Ms. Smith’s half-sister claims that Ms. Smith’s late husband, the nonagenarian billionaire J. Howard Marshall, left behind frozen sperm. And now Ms. Smith’s estranged mother has also rushed forward to claim custody of the baby. Could anything be worse for this little girl than to be at the center of such a media circus or to end up with one of these characters?

Actually, yes. For thousands of years, the future of a child born out of wedlock was of absolutely no interest to anyone, especially if she was an orphan. The only people likely to take her in were people who needed free labor on their farms or required a child “helper” small enough to run under dangerous factory machines piecing together broken threads or picking up dropped objects.

For 500 years, British law, on which American law was modeled, held that a child born to an unwed mother was a “filius nullius” — literally, a child of no one, entitled to support from no one. Little Dannielynn would not have had a right to her mother’s inheritance, much less a legal claim to receive support from the family of either her deceased mother or her father.

Hernandez v. Gil, — So.2d. —, 2007 WL 466029 (Fla. 3d DCA Feb 14, 2007) [Attorney Interview]

Drafting a settlement agreement is always part science, part art.  The drafting needs to be technically solid.  The economic aspects of the deal need to be clearly worked out, although this issue is usually pretty simple, no matter how many zeros are after the dollar sign (party A pays part B $___ to settle).  The less tangible aspect of the deal – but probably the most important contribution made by counsel – is anticipating everything that can go wrong and working defenses against these contingencies into the deal. 

The Art of the "General Release"

The linked-to opinion is an example of superb lawyering anticipating and building defenses against an unscrupulous litigant into a global settlement agreement.  In this case son challenged probate of his father’s will by suing his mother and a friend of the family, who were dad’s PRs and trustees of dad’s trust.  Son settles case against dad’s estate in exchange for certain estate assets and the exchange of general releases.  Son then breaches deal by suing again when mom passes away. 

Fortunately the lawyers negotiating the original settlement deal had anticipated this turn of events in the form of general releases that shielded the good guys from this type of attack.  Here’s how the 3d DCA described the three categories of general release at issue in this case:
 

  • First general release: shield mom’s estate from future attack by disgruntled son:

Pursuant to the clear and unambiguous language of the first general release executed by Hernandez, Hernandez agreed to release his mother, Doña Alicia, from any and all causes of action and to renounce any right in Doña Alicia’s estate, except to the extent, if any, that Doña Alicia named him a beneficiary under her will. Further, if not named as a beneficiary under his mother’s will, Hernandez agreed not to contest the validity of the will and waived his right to enter an appearance in any probate proceeding pertaining to his mother’s estate and, to the extent that he would make such challenge or enter any such appearance, he would be deemed to have predeceased his mother.

  • Second general release: shield the trustee from future attack by disgruntled son:

In a second analogously termed release, Hernandez agreed to renounce any right, title, or interest, vested or contingent, he had, has, or may have in the future in the Trust and in any other trust in which either of his parents was a settlor or beneficiary.

  • Third general release: shield family friend from individual future attack by disgruntled son:

In a third release, Hernandez agreed to release Gil, individually, and in her capacity as executrix and personal representative of Don Manolo’s estate, and in her capacity as the trustee of the Trust, from any and all claims whatsoever, in law or in equity, which he ever had, has, or may have in the future.

Lesson learned?

Good drafting worked . . . to an extent.  Although no one could physically prohibit disgruntled son from breaching the terms of the settlement deal, the general releases he signed provided effective tools for shielding against his future attacks.  Here’s how the 3d DCA described how disgruntled son breached original deal and how the general releases described above worked to thwart him:
 

The record indicates that Doña Alicia died in July 2003 and did not name Hernandez as a beneficiary under her last will and testament. Not surprisingly, Hernandez entered an appearance in the probate proceedings of his mother’s estate and filed a petition challenging the administration of her will, in clear contravention of the express terms of the GSA. Hernandez also filed a lawsuit against Gil, individually, for tortious interference with his rights to his mother’s inheritance. Pursuant to the clear and unambiguous language of the GSA and the corresponding releases, Hernandez bargained away his right to challenge his mother’s will and in the event that he did so, he would be deemed to have predeceased his mother. Having challenged his mother’s will, Hernandez is deemed to have predeceased her and therefore, has no right to any inheritance from his mother.

Appellate Briefs:

I’m rarely able to physically go to these meetings, but I always find time to read the excellent materials circulated to members prior to each meeting.  I also find these materials to be the best way to keep track of new legislation affecting the trusts and estates practice area.  If you read Jack Falk’s e-mail and the attached Agenda and Minutes for this meeting you’ll find discussions related to the following topics, all of which should be of interest to any Florida trusts and estates litigator:

  • Fiduciary Lawyer-Client Privilege: Approved by EC [ITEM 3]
  • Arbitration clause in a will or trust is enforceable: Approved by EC [ITEM 3]
  • Exculpatory clause in a will: Approved by EC [ITEM 3]
  • Payment of trustee’s fees from trust assets: Pending approval of EC [ITEM 4]
  • Which Orders Can Be Appealed in a Probate Proceeding? [ITEM 5] (see White Paper)
  • Revisions to Rule 1.525 concerning 30 day time limit for filing a motion for attorneys’ fees [ITEM 6]
  • ACTEC Model Arbitration Legislation. [ITEM 7]

As the Anna Nicole Smith saga takes its latest bizarre twist inside a South Florida courtroom, prominent South Florida trusts and estates litigators – Richard Milstein & Shane Kelley – were tapped by Broward County Judge Larry Seidlin to help him sort through the conflicting claims for custody of Anna Nicole Smith’s body.  CNN reported in In court: Who will bury Anna Nicole Smith? on these latest developments.  For those of us practicing in South Florida, it’s fun to spot our colleagues in the news.  Here’s an excerpt from the linked-to story:

FORT LAUDERDALE, Florida (CNN) — Anna Nicole Smith wanted to be buried in the Bahamas, next to her son, and bought a burial plot there, according to attorneys for her longtime companion, Howard K. Stern.

Smith’s estranged mother, Vergie Arthur, wants to take the body home to Texas to be buried with family members.

The two sides faced off in Broward County Circuit Court on Thursday at a probate hearing that bounced from custody of the body to DNA sampling to whether a baby can be considered next of kin under Florida law.

With several attorneys arguing loudly around a conference table, Judge Larry Seidlin tried to sort through a tangle of legal arguments and competing interests.

. . . . .

Some progress was made: The judge appointed a guardian, Miami attorney Richard Milstein, to protect the interests of Smith’s infant daughter, Dannielynn. He also appointed an administrator, Shane Kelley, a Fort Lauderdale lawyer, to sort through the competing interests and recommend who will bury Smith, and where.

An evidentiary hearing is scheduled for Tuesday.

Smith’s body is being kept under refrigeration at the medical examiner’s office in Dania Beach. She is likely to be embalmed there as early as Friday. But any decision about releasing her body for burial isn’t likely until next week at the earliest.

So who gets the body under Florida law?

What law applies will likely turn on what jurisdiction Anna Nicole Smith is deemed to have been a resident of when she died.  I don’t think Florida is in the running, but assuming somehow Florida law ends up governing the substantive rights at play here, then the 4th DCA’s 2005 opinion in Cohen v. Guardianship of Cohen, 30 Fla. L. Weekly D664 (Fla. 4 DCA March 9, 2005) will likely determine the outcome.  I wrote about this opinion here.

Anna Nicloe Smith apparently executed a will prior to her death (see here).  However, even if her will speaks to her wishes regarding her burial, the inquiry does not necessarily end there.  In Cohen the 4th DCA held that a testator’s will does not control where he or she is buried if there’s clear and convincing evidence reflecting that the testator’s true intent was to be buried elsewhere.  In other words, the parties need to present “clear and convincing” evidence to substantiate their claims to Anna Nicole Smith’s body.  Here’s how the Cohen court stated the rule:

[A] testamentary disposition is not conclusive of the decedent’s intent if it can be shown by clear and convincing evidence that he intended another disposition of his body.

I assume whatever ruling is entered by Judge Seidlin it will get appealed.  If it is, the appeal will be heard by none other than the 4th DCA, the same appellate court that decided Cohen.  Yes, Anna Nicole Smith’s on-going contributions to U.S. probate-litigation jurisprudence continue unabated (I wrote here about her May 2006 U.S. Supreme Court win).

P.S.  For additional commentary, see Anna Nicole Smith – Guidance for Burial Disputes (published in Steve Leimberg’s Estate Planning Newsletter).  As an extra bonus, this linked-to item also contains a link to Anna Nicole Smith’s just-released will.

Lawyers USA published this article discussing many of the reasons Florida is becoming an increasingly popular destination for the wealthy seeking lower taxes and greater asset protection.  For an alternate race-to-the-bottom angle on Florida’s increasing popularity see Marching Off a Cliff.

There’s nothing particularly new in the linked-to Lawyers USA article for practicing Florida trusts and estates attorneys.  However, I thought the introductory paragraphs were fine examples of Florida boosterism, and gladly reprint them below:

People are flocking to the Sunshine State in greater numbers than ever, seeking asset protection and a decrease in taxes, estate planners tell Lawyers USA.

"It’s a tidal wave," said Bruce M. Stone, a 32-year estate planning veteran at Goldman Felcoski & Stone in Coral Gables, Fla. "We’ve noticed a huge increase in the numbers of wealthy clients claiming Florida as a domicile."

"We’re seeing a significant uptick in the number of people relocating, or establishing themselves as Florida residents," agreed Donald R. Tescher, an estate planning and tax specialist at Tescher Gutter Chaves Josepher Rubin Ruffin & Forman in Boca Raton, Fla. "We’ve been really busy."

Clients with a second home in Florida are establishing it as their primary residence, and others are simply moving all of their assets into the state, he said.

Jonathan B. Alper, a solo in Heathrow, Fla. who specializes in asset protection, said that lawyers and clients are increasingly taking advantage of Florida’s favorable legal climate because "technology gives them the ability to communicate out of state so easily. Now it’s possible to live in Florida but run a business up north or stay in contact with family in California."