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Anna Nicole Smith’s tragic death put a spotlight once again on the record-shattering trust-and-estates litigation she and her former step-son, E. Pierce Marshall waged over the vast estate of her former husband, J. Howard Marshall. This case resulted in the U.S. Supreme Court’s 2006 decision in Marshall v. Marshall, viewed by many (including me) as opening the federal court room doors to trust-and-estates litigation to an extent we’ve never seen before.

So the timing of an article appearing in the 2007 January/February edition of the ABA’s Probate and Property magazine written by California trust-and-estates litigator Dominic J. Campisi was eerily prescient. In Marshall v. Marshall — Rashomon Revisited, Campisi does a good job of articulating why this case should be viewed as part of a general trend towards greater federal court involvement in trust-and-estates disputes. Here’s the conclusion to Campisi’s article, summing up his views nicely:

J. Howard Marshall, who had taught wills and trusts at Yale Law School, certainly has provided a most intriguing case study for future generations of law students and practitioners. The price of a unanimous decision such as Marshall is that many contentious issues are left unresolved in order to reach a common decision. The lower courts continue to wrangle over attempts to use federal diversity jurisdiction for probate and trust disputes based on the general conclusions in Marshall.

In Hoffman v. Sumner, No. 05-C7114, 2006 WL 1444677 (N.D. Ill. May 18, 2006), the court followed Marshall in denying remand of a diversity case involving a dispute over a joint tenancy asset, holding that the dispute did not violate the probate exception, and rejected the suggestion that it should abstain in favor of the local probate court. The bankruptcy court in In re Enron Corp. v. Whalen, 351 B.R. 305 (Bankr. S.D.N.Y. 2006), held that an action to recover an allegedly improper transfer from the estate of a decedent was not covered by the probate exception because there was no interference with the res in the possession of the state court. The court explained that any federal judgment could subsequently be enforced in the probate action.

Judge Richard Posner in Jones v. Brennan, 465 F.3d 304 (7th Cir. 2006), distinguished between a claim brought concerning the conduct of the Cook County Probate Court in a pending dispute, holding:

That clearly would violate the probate exception. Marshall v. Marshall, supra, 126 S. Ct. at 1748. But she is also accusing the guardians of having mismanaged the estate, and as an heir she may have a claim for breach of fiduciary duty by them. . . . Such a claim does not ask the court in which it is filed to administer the estate, but rather to impose tort liability on the guardians for breach of fiduciary duty.

465 F. 3d at 307–08 (citations omitted).

In Burt v. Rhode Island Hospital Trust National Bank, No. C.A. PC/022243, 2006 WL 2089254 (R.I. Super. July 26, 2006), the court followed Marshall in holding that a breach of fiduciary duty claim against an executor was not within the limited jurisdiction of the probate court and could be heard in the Rhode Island general jurisdiction court instead.

In Bedree v. Lebamoff, No. 05-2258, 2006 WL 2860575 (7th Cir. Sept. 27, 2006), the Seventh Circuit held in a federal question case that

[t]he claim against the probate commissioner confronts another jurisdictional bar: the probate exception to federal jurisdiction. . . . And Bedree’s request for the district court to remedy what he perceives as errors in the state court’s administration of the estate, like the plaintiff’s request in Jones is the equivalent to asking the district court to take over administration of the estate. . . . This violates the probate exception even under the Supreme Court’s narrowed construction of the exception in Marshall. See, Marshall, 126 S.Ct. at 1748 (limited probate exception to proscribe only “disturb[ing] or affect[ing] the possession of property in the custody of a state court”). . . . The breach of fiduciary duty claim, on the other hand, is not barred by the probate exception because it need not necessarily affect the administration of the estate. See Marshall, 126 S. Ct. at 1748; Jones, 2006 WL 2337610, at *3.

2006 WL 2860575 at *2.

Simpson v. In re Estate of Norton, 2007 WL 397463 (Fla. 3d DCA Feb 07, 2007)

The most frustrating probate litigant has to be the irrational adversary.  Not because this type of adversary is more apt to win, but because this type of adversary is more apt to make everyone waste a lot of time and money using the court system to force compliance with existing black letter law every step of the way.  The last sentence of the linked-to opinion gives you a hint of what type of litigant Ms. Simpson is:

[T]his is not the proper forum in which to litigate Simpson’s numerous complaints about her three former attorneys and we decline to address those issues.

What’s most striking about the linked-to opinion is that although the three orders at issue all cover mundane administrative decisions that all appear to be common sense rulings by a thoughtful probate judge — an irrational litigant was able to cause unnecessary delay and expense by exploiting the expansive appellate rules applicable to probate proceedings.  Two of the orders on appeal were entered in April of 2006, the third in July of 2006.  The appellate decision upholding those rulings wasn’t published until February of 2007: that’s 7 months of needless delay!?  If you read the opinion it sounds like the estate’s attorney did everything right.  Is there a better way to manage this type of irrational litigant?  I have to admit that in this case I can’t think of one.  Sure, you can always move for sanctions, but that doesn’t put a stop to the delaying tactics and the irrational litigant will probably brush off the threat of sanctions anyway.

In terms of guidance for future litigants, the following line from the linked-to opinion probably says it best:

[D]issatisfaction with the administration of a probate estate unaccompanied by any legal basis as to how the trial court abused its discretion is not grounds for an appeal.

I’ve written in the past regarding the unique public-relations issues faced by charities involved in trust/probate litigation (see here) and the different expectations the public and media have with respect to such litigants (see here).  The same dynamics are currently playing themselves out in a case involving a $260 million gift to eight charities.

As reported by the New York Times in Salvation Army Unit Seeks to Gain More of a Huge Gift, the charities find themselves balancing a legitimate desire to maximize the funds going to their respective charities — all of which do good works and could use the money — against appearing less than saintly in public.  Here are a few excerpts from the linked-to story:

The Salvation Army has gone to court in Seattle to challenge a trust dividing more than $260 million among eight charities, including Greenpeace.

The Salvation Army argues that the specific Greenpeace organization to which the donor, H. Guy Di Stefano, assigned the money was dissolved in 2005 and that its affiliate is not eligible to receive the gift. It wants the court to divide the money among the seven other charities.

“I’m mystified why anyone, let alone the Salvation Army, would oppose Greenpeace receiving this generous donation,” said John Passacantando, the group’s executive director. “It’s obvious that the donor’s intent was for Greenpeace to benefit from this.”

The dispute involves a trust created by Mr. Di Stefano, whose late wife, Doris, inherited United Parcel Service stock from her father, a former U.P.S. executive, and never sold it.

Mr. Di Stefano died in July and left his estate to eight charities: Direct Relief International, the Salvation Army, the Santa Barbara Hospice Foundation, the Santa Barbara Visiting Nurse Association, the American Humane Society, the Disabled American Veterans Charitable Service Trust, Greenpeace International Inc. and the World Wildlife Fund. Each stands to receive roughly $33 million.

Greenpeace International is defunct, however, and a charity called the Greenpeace Fund, with which it shared offices, phones and some employees, is claiming its share.

In October, Bank of America, the trustee, filed a petition in court in Washington State, where Mr. Di Stefano lived at the time of his death, asking what it should do. Shirley Norton, a bank spokeswoman, said it was only seeking to clarify its duties, not to deprive Greenpeace of money.

“Because of the disparity in the names and the fact that Greenpeace International no longer exists, we need guidance from the court,” Ms. Norton said.

The bank’s petition prompted the Salvation Army to contest disbursement of the money to the Greenpeace Fund.

.     .     .     .     .

The other beneficiaries of the trust have avoided the dispute.

“In my 10 years as a legal counsel here, we have never gotten involved in a dispute over donor intent, and we certainly have had the opportunity,” said Christopher J. Clay, general counsel and planned giving director at the disabled veterans group.

“For a national charity to get out there in this kind of a case would take a compelling reason,” Mr. Clay said, “and I don’t think there’s a compelling reason here.”

The tone of the article clearly telegraphs the writer’s disapproval of the Salvation Army’s actions and the lengths the other charities are going to distance themselves from the Salvation Army.  Not surprisingly the blogosphere has been less than "charitable" to the Salvation Army on this case (see here).  The Salvation Army thought it was resolving a legal dispute when in fact it was stepping into a big PR mess.  I don’t fault them for seeking to maximize their share of the $260 million charitable gift, but I do fault them for being clumsy about it.

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In 2005 sixteen-year-old Jerrod Miller was shot to death by a Delray Beach police officer.  Ten years earlier, in 1995, Kenneth Miller was declared Jerrod’s father by an adjudication of paternity and judgment requiring child support.  In 2006 posthumous DNA testing revealed a 99% likelihood that another man, Terry Glover, is really the biological father of Jerrod.  Because Jerrod died without a will, under Florida’s laws of intestacy (F.S. 732.103), Jerrod’s estate passes to his parents in equal shares or to his sole surviving parent if either predeceased him.  Jerrod’s mother died in 2003, so whomever ends up designated as his father gets everything.  According to this Sun-Sentinel report, millions could be at stake:

Miller’s attorney, T.J. Cunningham, said Willie Gary would file a wrongful-death lawsuit as soon as Miller is formally appointed personal representative of the estate. Gary, a high-profile Stuart attorney, previously notified Delray Beach that the estate would settle the case for $7.5 million.

Glover v. Miller, 2007 WL 247899 (Fla. 4th DCA Jan 31, 2007):

Both men filed dueling petitions for administration of Jerrod Miller’s estate.  The probate court ruled in favor of Miller based on the 1995 paternity adjudication — and the 4th DCA upheld that ruling based in part on the following rationale:

Section 732.101(2) provides that the decedent’s date of death is the event vesting the heirs’ rights to intestate property. At the date of Jerrod’s death, Glover was not considered Jerrod’s father for purposes of intestate succession, because he never married Jerrod’s mother, was never adjudicated to be his father, and never acknowledged in writing that he was Jerrod’s father. In contrast, Miller was Jerrod’s father for purposes of intestate succession because he was adjudicated to be Jerrod’s father. Thus, Miller’s rights vested on Jerrod’s death because he is Jerrod’s father by a paternity judgment. Jerrod was a lineal descendant of Miller within the meaning of section 732.108(2)(b), so he is an heir for purposes of section 733.301(1)(b)3.

. . . . . .

As noted by the trial court, Glover did not move to set aside the adjudication of Miller’s paternity. His petition for administration of the estate merely alleged that he is the biological father of Jerrod. Yet Miller is Jerrod’s father in the eyes of the law, regardless of the results of DNA testing.[FN1] The legal father has substantial rights (in this case vested rights) which cannot be lightly dismissed, even by the discovery that the legal father is not the biological father. In fact, our supreme court has held that the mere fact that biological testing shows that a man other than a legal father is the biological father of the child without more does not require the granting of a paternity petition. Dep’t of Health & Rehabilitative Servs. v. Privette, 617 So.2d 305 (Fla.1993).

[FN1.] Glover’s contention that he is entitled to summary judgment of fatherhood based upon DNA testing alone is also statutorily inaccurate. Where DNA testing shows a 95 percent or more confidence level that the man is the biological father, it creates only a rebuttable presumption of fatherhood. § 742.12(4), Fla. Stat. (2006).

. . . . . .

We agree with the trial court that in order for Glover to assert a right as an heir, the existing judgment of paternity would have to be vacated. A child cannot have two legally recognized fathers. See Achumba v. Neustein, 793 So.2d 1013, 1015 (Fla. 5th DCA 2001).

The departure of a number of prominent trust-and-estates partners from Sonnenschein Nath & Rosenthal has highlighted – again – the precarious nature of big firm trusts and estates departments.

As a partner in a small "boutique" trusts-and-estates firm (4 partners, 1 associate) I’ve seen first hand why this practice is a tough sell for big firm bean counters: leverage.  It’s very, very difficult to leverage yourself as a T&E lawyer, which is OK in a small firm — but not-so-OK in a big firm.  Here’s an excerpt of what the Wall St. J. Law Blog had to say on the the subject:

With profitability a top priority at Sonnenschein Nath & Rosenthal, one practice group is under the microscope: trusts and estates. Four T&E partners at Sonnenschein in recent weeks have either left or announced plans to leave the 660-lawyer firm.

Roy Adams, the senior chairman of the practice group, left on Jan. 1 for Constantine Cannon; Eileen Trost jumped to Chicago’s Bell Boyd & Lloyd in December; Richard Brown recently departed for Harrison & Held; and Susan Slater-Jansen has announced she’s moving to Kurzman Eisenberg Corbin Lever & Goodman in White Plains, N.Y.

The departures come at a time when Elliott Portnoy .  .  .  , the firm’s 41-year-old chairman-elect, has said he is bent on taking a hard look at the economics of Sonnenschein’s various departments. T&E may be vulnerable because it is a low “leverage” practice — fewer junior lawyers generally are needed, say, to draft a will than to complete a merger agreement.

I say good riddance — a sentiment apparently shared by Chicago T&E lawyer Joel Schoenmeyer, as expressed in the following excerpt from his blog, Death & Taxes:

It may be that big firms don’t need estate planning groups (or don’t think they do — big firms, like Kirkland & Ellis, are famous for changing their minds on this point). But I think that goes both ways — good estate planners don’t need big firms, either. We’re probably going to see more T&E boutique firms (like this one) spring up in the near future, which is a good thing.

In re Amendments to Florida Probate Rules, — So.2d —-, 2007 WL 268753 (Fla. Feb 01, 2007)

To those of us who live in this world, new probate rules are yet another piece of the puzzle to keep up with.  So here you are.  Below is the Florida Supreme Court’s preamble and order making the changes effective immediately.

PER CURIAM.
This matter is before the Court for consideration of proposed amendments to the Florida Probate Rules. We have jurisdiction. See art. V, § 2(a), Fla. Const.

On October 30, 2006, the Florida Probate Rules Committee (Committee) filed a fast track report recommending various amendments to the Florida Probate Rules in response to 2006 legislation. The Committee has proposed amendments to a number of rules, mostly in response to statutory changes made by chapters 2006-77 and 2006-178, Laws of Florida. Chapter 2006-77 became effective June 6, 2006, and chapter 206-178 became effective July 1, 2006. In addition, the Committee has recommended amendments to several rules in order to reflect the recent renumbering of the Florida Rules of Judicial Administration. See In re Amend. to Fla. Rules of Jud. Admin., 939 So.2d 966 (Fla.2006). All proposed amendments were approved by unanimous vote of the Committee and the Executive Committee of The Florida Bar Board of Governors. The Committee published the proposals in the November 1, 2006, edition of The Florida Bar News, with a request that comments be filed directly with the Court. No comments have been filed.

Accordingly, upon consideration of the Committee’s report and the relevant legislation, we hereby amend the Florida Probate Rules as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective immediately.

It is so ordered.

Although civil-rights icon Rosa Parks passed away leaving behind a modest estate, there are millions at stake in her estate’s upcoming will-contest jury trial.  When Ms. Parks passed away, her most valuable asset was not her bank account — it was the future marketing rights to her name and likeness.  An excerpt from Forbe’s list of Top-Earning Dead Celebrities for 2006 gives a sense of how high the economic stakes in the Parks litigation could be:

The 13 icons on our sixth annual Top-Earning Dead Celebrities list collectively earned $247 million in the last 12 months. Their estates continue to make money by inking deals involving both their work and the rights to use their name and likenesses on merchandise and marketing campaigns. To land on this year’s list, a star needed to make at least $7 million between October 2005 and October 2006.

As reported here in Philip Bernstein’s New York Probate Litigation Blog Parks died in October 2005, leaving virtually all of her assets under a 1998 will to the nonprofit Rosa and Raymond Parks Institute for Self Development, which she founded in 1987 with her longtime friend and caregiver, Elaine Steele. Steele, who has served as an officer of the institute, was granted power of attorney over Parks in 1998, the same year Parks’ will was signed.  The will-contest goes to trial on February 19, 2007, before a six-member jury in Wayne County Probate Court, although rumors of a pre-trial settlement have surfaced in the past (see here).

For the latest developments in this case, here’s an excerpt from Millions at stake in name of Parks:

The ongoing battle over Rosa Parks’ estate set to play out in a Wayne County courtroom next month will have more to do with the marketing rights to her likeness and image than any money the civil rights icon left when she died.

Even if Parks’ estate isn’t worth the millions some have claimed, experts say, her name and image could be worth millions for decades to come.

"Maybe tens of millions," said Charles L. Sharp, a marketing professor at the University of Louisville, noting that former boxing great Muhammad Ali last year sold most of the rights to his name and likeness for $50 million to be used on such products as snack food.

. . . . .

Since her death, Parks’ likeness has appeared in national Chevrolet and Apple Computer ads. Not to mention the souvenirs and other memorabilia being sold around metro Detroit and over the Internet.

Parks’ only family, 13 nieces and nephews, contested their aunt’s will in November 2005, claiming that Steele bamboozled Parks, who suffered from dementia, into signing a will that cut them out of any decision-making about how Parks’ likeness would be used and any profit from the licensing of her name and image.

. . . . .

Civil rights activists and others will closely watch the outcome because it could determine how the country ultimately remembers one of its greatest heroes of the struggle for racial equality.

"If this can happen to someone of her stature, then it can happen to anyone," said nephew William McCauley, 48, of Detroit, who serves as the family spokesman. "We just believe that our aunt was taken advantage of. … The way her will read, she didn’t care about her family, and that couldn’t be farther from the truth."

Spoerr v. Manhattan Natl. Life Ins. Co., 2007 WL 128815 (S.D.Fla. Jan 12, 2007)

I’ve written previously about the probate-litigation issues lurking at the end of many divorces (see here).  Case in point: receipt of life insurance proceeds by ex-spouse.  That’s what the linked-to case is about: ex-husband was the named beneficiary of a life insurance policy on his ex-wife.  Ex-wife executed a durable power of attorney (“POA”) designating her son as her attorney-in-fact.  Son used the POA to change the beneficiary designation form on his mom’s life insurance policy.  When mom died, the insurance company paid son $250,445.80.  Dad found out and sued everyone in sight to get his hands on the insurance money.

Probate disputes involving conflicting claims to life insurance proceeds are common.  There are three aspects of this case that I find most interesting.

1.    Increased federal jurisdiction over probate disputes.

Although not technically a dispute involving the decedent’s probate administration, the litigation at issue in the linked-to case is part and parcel of the big picture involving who gets what after mom died.  The fact that this particular piece of the litigation ended up in court (diversity jurisdiction) may mean nothing, or could be another example of the increased “federalization” of trust-and-estates litigation predicted by those following the U.S. Supreme Court’s decision in Marshall v. Marshall, and written about recently in Marshall v. Marshall — Rashomon Revisited, Prob. & Prop., Jan./Feb. 2007.

2.   The scope of authority conveyed in a Durable Power of Attorney

Abuse and exploitation of the elderly by means of durable powers of attorney is an often-written about problem (see here).  In the linked-to case, the court ruled that son’s use of his mom’s POA to change the beneficiary designation on her life insurance policy was was void ab initio, based on the following rationale:

The construction of the durable power of attorney (“POA”) executed by Patricia in July of 2003 is a matter of law. See James v. James, 843 So.2d 304, 308 (Fla. 5th DCA 2003) (“Construction of a power of attorney, like contract law, is a matter of law.”). In construing a POA, “[t]he court must look to the language of the instrument, as with any other contract, in order to ascertain its object and purpose.” Johnson v. Fraccacreta, 348 So.2d 570, 572 (Fla. 4th DCA 1977). In addition, “ ‘powers of attorney are strictly construed.’ “ Alterra Healthcare Corp. v. Bryant, 937 So.2d 263, 269 (Fla. 4th DCA 2006) (quoting De Bueno v. Castro, 543 So.2d 393, 394 (Fla. 4th DCA 1989)). The POA at issue in this case contains a limitation on the authority granted to the attorney-in-fact.  Specifically, the POA states:

Limitation. Notwithstanding the powers contained in this Durable Power of Attorney, my attorney in fact may not perform duties under a contract that require the exercise of my personal services; make any affidavit as to my personal knowledge; vote in any public election on my behalf; execute or revoke any Will or Codicil on my behalf; create, amend, modify, or revoke any document or other disposition effective at my death or transfer of assets to an existing trust created by me unless expressly authorized by this Power of Attorney or said document; or exercise powers and authority granted to me as trustee or court appointed fiduciary unless otherwise expressly authorized by said instrument of the court.

(D.E. No. 33 Exh. B ¶ (q)) (emphasis added). See also Fla. Stat. § 709.08 (stating the same limitation on an attorney-in-fact).  Thus, this language specifically prohibits the attorney-in-fact from changing the beneficiary of a life insurance policy as was done in this case unless the POA specifically authorizes the attorney-in-fact to perform this action. Upon examination of the POA, there is no provision which expressly authorized Richard T. as Patricia’s attorney-in-fact to change the beneficiary on her insurance policy. Manhattan’s contention that paragraph (i) of the POA which provides that the attorney-in-fact could “execute and deliver applications for insurance ··· and to cancel and select the amounts therefor” authorized Richard T. to change the beneficiary on an existing policy is without merit. Applying for insurance is not the same as changing the beneficiary on an existing policy and paragraph (i) is in no way an “express” authorization for Richard T.’s actions as required by paragraph (q) of the POA. Therefore, the policy change request executed with Richard T.’s signature as Patricia’s attorney-in-fact is void ab initio. See, e .g., Campbell v. Metropolitan Life Ins. Co., 812 F.Supp. 1173 (E.D .Okla.1992) (finding where a change of beneficiary form for a Federal Employees Group Life Insurance policy was not witnessed as required by the applicable law the attempted change was “invalid and of no effect.”).

3.   No immunity for insurance company under F.S. 627.423

The last thing insurance companies want is to get sucked into probate litigation.  The purposes of F.S. 627.423 is to make sure they don’t.  This statute basically says that insurance companies can’t be sued for paying out insurance proceeds in accordance with a policy’s beneficiary designation form.  The trial court said the statute didn’t apply, and thus the insurance company could be sued by dad to recover the insurance proceeds wrongfully paid to son, based on the following rationale:

First, the court ruled that because the beneficiary designation was void ab initio the statute did NOT apply.

[A]s payment was made to Richard T. and not Richard E. and as the change of beneficiary was void ab initio, the payment was not made “in accordance with the terms of the policy” to the “person then designated.”

Second, the court ruled that the insurer essentially had constructive knowledge of the fact that it was paying the insurance proceeds to the wrong person, thus for this reason as well the statute did NOT apply.

Furthermore, an insurer is only immune from liability where payment to the beneficiary was done in good faith without knowledge.

Here, it is undisputed that the policy only gave the power to change the beneficiary to the owner of the policy, who in this case was Patricia. (D.E. No. 1, Exh. A at 4,8). It is also undisputed that Manhattan received the POA and relied upon it in approving the change of beneficiary request signed by Richard T. (D.E. No. 32, Exh. 2 at 2). As the POA did not allow Richard T. as attorney-in-fact to execute the change of beneficiary form, a fact that is clear from the face of the POA, Manhattan was on notice that this change of beneficiary form was invalid and that Richard E. remained the beneficiary of the policy. See, e.g., Stavros v. Western & Southern Life Insurance Company, Inc., 486 S.W.2d 712 (Ky.1972) (where the Court found an insurance company was not immune from liability under a similar statute because insurer should have known that the change of beneficiary was unauthorized as the form changing the beneficiary was not executed by the insured, an eleven-year-old-boy or his parent or guardian as required by the policy). Thus, section 627.423 does not preclude Manhattan from liability.

Keller v. Estate of Keller, 2007 WL 162770 (Fla. 4th DCA Jan 24, 2007)

The underlying facts of this tragic divorce/murder/land-trust case are recounted in lured detail in a Dateline NBC report entitled The Model and the Millionaire. Before the divorce was finalized, Mrs. Keller was murdered.  Mr. Keller is now in jail charged with her murder.  Mr. Keller’s reported $72+ million fortune is mostly in real estate.  His real estate investments were held in various land trusts.  (I’ve written recently about land trusts here and here.)

During his marriage to mail-order bride Mrs. Keller, Mr. Keller lead her to believe he was transferring a 50% beneficial interest in certain land trusts to her, when in fact he later testified that he had purposely failed to comply with the “technicalities” needed to transfer interests in a land trust.  When he tried to raise his own deliberate failure to comply with the requisite formalities for transferring title, the trial court ruled against him and the 4th DCA upheld that ruling based on the following rationale:

Another issue involves a number of other trusts which are factually similar. In 1999, at a time when Mrs. Keller was a minority beneficiary of the trusts, Mr. Keller, at her request, made written changes on each trust document to reflect that she had a fifty percent beneficial ownership interest. He testified in the dissolution proceeding that he had deliberately not followed through on certain formalities required by the trust instruments regarding the altering of the beneficial ownership interests. Again, his testimony, which was in conflict with his written changes on the trust instruments, was found not credible. There was ample evidence to support the trial court’s conclusion that Mr. Keller was estopped from raising the technical deficiencies, which included the fact that Mrs. Keller was equally jointly liable on the indebtedness on most, if not all of these properties. Cotton v. Williams, 1 Fla. 37, 54 (Fla.1846) (“No man can avoid his own deed by which an estate has passed, on account of his own fraud in executing it.”).

Lesson learned:

As a trust-and-estates attorney I would rationalize the court’s actions not only on notions of equity — which is the heart and soul of divorce litigation — but also on the distinction between equitable and legal title I wrote about here.  Mr. Keller’s actions may have purposely avoided the requirements for transferring legal title, but his actions were certainly sufficient to transfer equitable title.

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It was only about a month ago that I wrote here about the reversal of a probate court’s refusal to appoint the person designated in a will to serve as personal representative.  In the linked-to case we again have a probate court being reversed for failing to appoint the personal representative named by the testator in his will.  Why probate courts feel they have the discretion to brush aside perhaps one of the most important aspects of any person’s will — designating your PR — is a mystery to me.  The following excerpt from Wikipedia’s definition of executorgives a good sense of how big a job being PR can be, and thus how important this choice is:

Typically the executor is the person responsible for offering the will for probate, although it is not absolutely required that he or she do so. The executor’s duties also include the disbursement of property to the beneficiaries as designated in the will, obtaining information about any other potential heirs, collecting and arranging for payment of debts of the estate and approving or disapproving creditor’s claims. An executor also makes sure estate taxes are calculated, necessary forms are filed and tax payments made, and in all ways assists the attorney for the estate. Also the executor makes all donations as left in bequests to charitable and other organizations as directed in the will. In most circumstances the executor is the representative of the estate for all purposes, and has the ability to sue or be sued on behalf of the estate. The executor also holds legal title to the estate property, but may not use that property for the executor’s own benefit unless expressly permitted by the terms of the will.

Case Study

Hernandez v. Hernandez, 2007 WL 120051 (Fla. 5th DCA Jan 19, 2007)

Given that the selection of a PR is so important, it’s little wonder that Florida law provides such deference to the choice expressed in a person’s will.  Here’s how the linked-to opinion articulated Florida law on this point:

In Schleider, the Fourth District wrote:

The general rule of law is that trial courts do not have discretion to refuse to appoint the personal representative named by the testator in the will unless that person is disqualified by law. Clearly, the testator’s selection of a personal representative should be afforded great deference. Only in exceptional circumstances does a court have the discretion to refuse to appoint a person as personal representative who was named in the decedent’s will.

Schleider, 770 So.2d at 1253 (citations omitted); see also § 733.301(1)(a) 1., Fla. Stat. (2005).

In the linked-to case the probate court refused to appoint the designated PR because of animosity between the designated PR and his brother.  The 5th DCA explained as follows why family-acrimony alone isn’t reason enough to ignore a person’s will:

[T]he trial court did not detail the facts that would support the denial of Ruben’s petition for administration, but referred only to the brothers’ conflict as its basis for declining to appoint either as personal representative. This was insufficient because a dispute between the estate’s beneficiaries, without more, does not constitute sufficient grounds to refuse to appoint an otherwise qualified person named as personal representative in the decedent’s will. See Schleider, 770 So.2d at 1254. Where a dispute will cause unnecessary litigation and impede the estate’s administration, and either the person lacks the character, ability, and experience to serve or exceptional circumstances exist, the totality of circumstances may permit the court to refuse to appoint the personal representative named in the will. Id. Here, the record does not support such a conclusion.