Faerber v. D.G., 2006 WL 287322 (Fla. 2d DCA Feb 08, 2006)

Probate proceedings take place before judges, not juries. As such the parties involved (including judges), may not always feel strict compliance with Florida’s rules of evidence is a necessary precaution (although Florida Probate Rule 5.170 states explicitly that the rules of evidence in civil actions generally apply to probate proceedings). That point of view is usually harmless because many of the evidentiary rules designed to shelter juries from unfair inferences may not be necessary where, as in probate proceedings, the judge is also the fact finder.

But simply skipping the need for ANY evidence is NOT acceptable, a point made by the 2d DCA in this case when it reversed a ruling by Collier County Judge Hugh D. Hayes granting a petition made pursuant to 2005->Ch0733->Section%20702#0733.702″>F.S. § 733.702(3) seeking leave to file a late claim against the estate because the purported creditor had allegedly been provided with insufficient notice of the claims period. According to this newspaper article, the 2d DCA’s ruling will result in the dismissal of a $10 million lawsuit against the estate.

A trial court’s ruling on a petition for more time to file a claim against an estate is usually reversed only if the trial court has “abused its discretion.” This is a tough burden to overcome, but, as the 2d DCA makes clear in the following excerpt from its opinion, a ruling based on NO evidence is an abuse of discretion and subject to reversal:

[A]s the trial court acknowledged in its order, neither party presented any evidence below. Although, at the hearing, counsel for D.G. made certain representations as to how the Decedent and his family knew D.G. and how the Decedent’s family was aware of D.G.’s involvement in the criminal case against the Decedent, counsel for Appellants objected, noting that such representations did not amount to factual evidence. We agree. See Steinhardt v. Intercondominium Group, Inc., 771 So.2d 614 (Fla. 4th DCA 2000) (stating that facts in dispute must be proven absent stipulation and that representations of counsel are insufficient). Because there was no other evidence presented at the hearing, we can only conclude that the trial court erroneously based its ultimate conclusion that D.G. was a reasonably ascertainable creditor on the assertions of D.G.’s counsel. This was an abuse of discretion. See Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So.2d 300, 304 (Fla. 2d DCA 2004) (“Reaching the legal conclusion that [a]ppellees had shown due diligence when there was no evidence presented upon which to make such a finding is clearly an abuse of discretion.”). Accordingly, we reverse the trial court’s order granting D.G.’s petition for extension of time to file a claim against the Estate.

Because D.G. scheduled the hearing on his motion, failed to present any evidence at that hearing to establish that he had received insufficient notice of the claims period, and did not try to remedy the error when it was pointed out by Appellants’ counsel, on remand the trial court is instructed to enter an order denying D.G.’s petition. (Emphasis added.)

Ouch!

Listen to this post

Trust and estates lawyers often find themselves advising clients in anticipation of future litigation. Be it in the context of a will that disinherits family members or a trustee receiving a letter from counsel representing disgruntled trust beneficiaries, one issue that needs to be thought about at the very beginning is: will separate trial counsel be needed?

Case Study

Eccles v. Nelson, 2006 WL 192633 (Fla. 5th DCA Jan 27, 2006)

This 5th DCA opinion is a prime example of how these issues can come back to bite you if you’re not anticipating them. Here opposing parties sought to probate conflicting wills, one signed in 2001 and the other in 2004. The validity of the 2004 will was challenged on grounds of undue influence, the decedent’s lack of requisite mental capacity, and the genuiness of the decedent’s signature. The attorney who drafted the 2004 will and also acted as a witness when the decedent purportedly signed the 2004 will was engaged by the party attempting to probate the 2004 will to be her trial counsel.

On a motion to disqualify, Seminole County Judge Gene R. Stephenson entered an order disqualifying the 2004-will-drafting attorney. It is important to note that the trial court did not disqualify him from representing his client either pre-trial or post-trial. The trial court’s ruling was apparently based on Florida Bar Code of Professional Responsibility Rule 4-3.7. The following excerpts from the official “Comment” to Rule 4-3.7 sum up the prejudice/conflict-of-interest concerns underlying the rule:

Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and client. The opposing party has proper objection where the combination of roles may prejudice that party’s rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.

On appeal the 5th DCA upheld the trial court’s ruling on the following two grounds. First, Rule 4-3.7 supports disqualification. And second, disqualification of the 2004-will-drafting attorney did not violate his client’s constitutional First Amendment right to association because Florida courts have a substantial and legitimate governmental interest in protecting the integrity of the litigation process. So saith the 5th DCA:

The trial court determined that Mr. Salter’s knowledge and involvement with the 2004 will would concern crucial issues to be determined at trial, and entered an order disqualifying him from representation of the petitioner at trial. The court did not disqualify him from representing the petitioner either pre-trial or post-trial, however. We find no departure from the essential requirements of law, and deny the petition for certiorari because Florida Bar Code of Professional Responsibility Rule 4-3.7 supports the disqualification.

Rule 4-3.7 reads in pertinent part, as follows:

(a) When Lawyer May Testify. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client except where:

(1) the testimony relates to an uncontested issue;

(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;

(3) the testimony relates to the nature and value of legal services rendered in the case; or

(4) disqualification of the lawyer would work substantial hardship on the client.

In the present case the issues of mental incapacity, undue influence and genuineness of the signature are obviously contested matters of substance, and Mr. Salter’s testimony is well beyond a mere formality. The trial court’s application of the rule to these facts appears to be within its authority, and is supported by Larkin v. Pirthauer, 700 So. 2d 182 (Fla. 4th DCA 1997). There, as here, the disqualification of the attorney for a personal representative by the trial court was approved where the attorney prepared the will and supervised its execution, and where the issues before the trial court concerned the testamentary capacity of the decedent and undue influence.

The petitioner next argues that Rule 4-3.7 is unconstitutional because it violates the First Amendment right to association. We do not agree.

Lesson Learned?

The last thing a client wants to hear is that large sums of money have been paid to an attorney in preparation for a trial that he or she is now disqualified from. It may make economic sense to engage the drafting attorney as pre-trial or post-trial counsel and hire a second lawyer to act as trial counsel. The point is that clients and their attorneys need to anticipate this issue and plan accordingly – not have it thrust upon them on the eve of trial.

Weisfeld-Ladd v. Estate of Ladd, 2006 WL 231481 (Fla. 3d DCA Feb 01, 2006)

Clearly, the couple at the center of this dispute thought that when they signed their prenuptial agreement they were waiving any spousal rights they had to each other’s separate property – including rights of a surviving spouse to an elective share under 2005->Ch0732->Section%20201#0732.201″>F.S. § 732.201. Nonetheless when husband died, surviving spouse went ahead and filed a petition seeking an elective share of his estate. The 3d DCA summarized her testimony regarding the couple’s clear intent as follows:

“Most importantly, the wife testified as to her understanding of the Prenuptial Agreement. It was her understanding that if she would have passed away, her son would have inherited all of her separate property, and that upon her husband’s death, his children would inherit all of his separate property.”

“[Wife] even acknowledged that if she would have predeceased her husband, her son would have been entitled to inherit all of her separate property. Based upon the wife’s interpretation of the Prenuptial Agreement, it is clear that the husband and wife’s intent would have been defeated if the surviving spouse was permitted to receive an elective share. There is no doubt that the wife clearly understood that, by entering into the Prenuptial Agreement, she would not receive any of the husband’s separate property upon his death, and that all of his separate property would go to his two children.”

The only problem was that the prenuptial agreement didn’t actually say what the parties thought they were agreeing to. In fact, the key language of the prenuptial agreement doesn’t mention waiving spousal elective share rights at all, what it does say is, to say the least, “ambiguous”:

“It is [husband’s] intent that, in the event of his death, all of his separate property be given to his children, STEVEN M. LADD and BETHANY S. LADD, or as otherwise provided for in his Last Will and Testament.”

Was that one sentence enough under 2005->Ch0732->Section%20702#0732.702″>F.S. § 732.702 to effectuate a valid waiver of spousal elective share rights? According to Dade County Probate Judge Maria M. Korvick it was, so she denied surviving spouse’s elective-share petition. By the way, here are the portions of 2005->Ch0732->Section%20702#0732.702″>F.S. § 732.702 focused on by the 3 DCA:

“rights of a surviving spouse to an elective share *** may be waived, wholly or partly, before *** marriage, by a written contract**** Unless the waiver provides to the contrary, a waiver of ‘all rights,’ or equivalent language, in the property or estate of a *** prospective spouse *** is a waiver of all rights to elective share****
(emphasis added by 3d DCA).”

What I find most interesting about this case is how the 3 DCA seems to go out of its way to affirm the trial court’s ruling denying the surviving spouse’s elective share claim. Obviously swayed by a compelling set of facts, the 3 DCA arrived at the “right” conclusion as follows:

First: Assume findings of fact NOT included in the trial court’s order:

“The trial court did not make a specific finding as to whether the Prenuptial Agreement was ambiguous or unambiguous. However, as the trial court allowed the wife to testify as to her intent when entering into the valid Prenuptial Agreement, we assume that the trial court found that the Prenuptial Agreement was susceptible of more than one construction and, therefore, ambiguous.”

Second: Agree with findings of fact ASSUMED into the record:

“Upon review of the Prenuptial Agreement, we agree with the trial court’s determination that the Prenuptial Agreement was ambiguous.”

Third: After assuming factual findings into the record that weren’t there to begin with, then agreeing with the trial court’s assumed findings of fact, hold that “PAROL EVIDENCE,” i.e., testimony by the surviving spouse completely undermining her own petition, was validly admitted to construe the “ambiguous” prenuptial agreement:

“As the agreement was ambiguous, the trial court properly admitted parol evidence to shed light on the intent of the parties when entering into the Prenuptial Agreement.”

Presto! Good facts save the day!

According to this study sponsored by Allianz Life Insurance, non-financial items that parents leave behind–like ethics, morals, faith, and religion–are 10 times more important to both boomers and their parents than the financial aspects of inheritance. Little wonder then that estate planners have responded to this “values driven” estate planning perspective with trust vehicles that provide positive financial incentives for behavior parents and grandparents want to encourage, as well as financial disincentives for behavior parents and grandparents want to discourage. These trusts are referred to as “incentive trusts,” and they are gaining in popularity.

The New York Times recently reported here on the growing acceptance and use of incentive trusts as estate planning tools. Although the article was well written, what I find most interesting is the fact that it was written at all. What was once as little-known planning device has now apparently gained such widespread acceptance that it warrants national attention in a general circulation newspaper.

Below are a few excerpts from the linked-to New York Times story:

“In traditional trusts, beneficiaries receive money at a certain age, but in incentive trusts, heirs must reach milestones or take actions. For example, children might receive a $25,000 bonus when they graduate from college or marry. Or they might receive funds matching money they earn.”

“Mr. Holzapfel, who has many wealthy clients in the technology and real estate fields, says he has seen a growing interest in performance-based trusts.

“Quite a few people worked their tails off in high tech, working 24/7 for years, and made a lot of money,” he said. “They have a very strong work ethic, and they want their kids to as well.” Among his clients with young children and assets of $10 million or more, about 60 percent have incentive trusts.

Critics, however, call incentive trusts too inflexible and say that some parents can be too controlling. A trust that offers a dollar for every dollar earned can be unfair, the critics say, because it gives big rewards to already-successful business people and much smaller amounts to heirs who may work just as hard but have chosen careers as, say, artists or teachers. (And unless other provisions are made in the trust, homemakers and volunteers may get nothing.) Critics also say that some incentives may go so far as to pay children to provide their parents with grandchildren.”

“The Bessemer Trust Company, a wealth management firm, serves as trustee for about half its 1,800 client families, who have a variety of estate plans. William H. Forsyth Jr., the firm’s chief fiduciary counsel, says the biggest fans of performance-based wills are typically “C.E.O. types who tend to be quite controlling” and those with first-generation wealth because “they are the most scared by it.” Because incentive trusts are relatively new, he predicts many legal challenges from heirs.” (Emphasis added.)

Vargas v. Acosta, 2006 WL 120182 (Fla. 3d DCA Jan 18, 2006) In this case the ward’s daughter from a prior marriage was his guardian. According to a spirited dissent in this case by Third DCA Justice Ramirez, the animus between these two was “obvious even from the sparse record” before the court. The explicit issue before the Third DCA in this case was whether Miami-Dade County Judge Arthur Rothenberg had complied with the requirements of 2005->Ch0744->Section%202025#0744.2025″>F.S. § 744.2025 by entering an order sua sponte authorizing the change of the ward’s residence from Miami to Cape Coral over his wife’s objections and in spite of the fact that counsel for the wife, Candis Trusty, had served a motion to vacate such order. The Third DCA upheld the trial court’s decision. Justice Ramirez dissented by arguing that the ward’s spouse had been denied any meaningful level of due process in the proceedings. Here are a few representative excerpt’s from Justice Ramirez’s dissent:

“The trial court did not hold a hearing. Thus, there is no judicial record to support the change in the ward’s residence. The majority finds, without explanation, that the statutory requirements were met by “[considering] the reason [given] for … relocation.” Op. at —-. Does this mean that the court “considered” the reasons in private? Or does the majority mean that the court “considered” the reasons at the after-the-fact hearing on March 7th? When did the trial court “consider” placing the ward in any local facility? The majority states that there was no dispute that the ward’s needs would be best met by living in a facility close to the guardian’s home. I find no record support for that statement. I also find no record support for the contrary, but that is the problem. The merits of the move from Miami to Cape Coral were never discussed at the trial level. The only hearing, on March 7, was not to discuss the merits of the move, but to allow the wife an opportunity to vent. Only the process, or lack thereof, was discussed.” “I can appreciate the exigencies of the situation where the medical facility was threatening to remove the ward, but it seems that the wife’s counsel filed a hand-written motion before the ward was removed. There was nothing to prevent an emergency hearing taking place at that moment. The right to due process cannot be so casually ignored. Neither appellee’s brief nor the majority opinion cite a single case to justify what happened at the trial level. (Emphasis added.)”

One way to rationalize the Third DCA’s majority opinion with the points made by the dissent is to assume that under Florida law interested parties other than the ward have very little, if any, constitutionally protected rights. In a case I wrote about here the Second DCA reversed a trial court’s decision denying a petition for visitation rights filed by a child-ward’s grandmother. The Second DCA held that unlike a natural parent, a child-ward’s guardian is simply an agent or “arm” of the court, and thus such guardian does not have the same constitutionally protected “privacy rights” that a natural parent has. The following are a few representative excerpts from that opinion:

“In Florida . . . the power and responsibility of a court exercising guardianship jurisdiction over minors is such that the court itself is considered to be the minor’s guardian. See Brown v. Ripley, 119 So.2d 712, 717 (Fla. 1st DCA 1960). Thus “the legal guardian of a minor is regarded as the agent of the court and of the state in the discharge of his duty as such.” Id.” “Considering the guardian’s status as an arm of the court, the implications of our supreme court’s decision in the Watland case, and the weight of authority from other jurisdictions, we conclude that the probate court has the power to direct a guardian to permit a grandparent or other person to visit a minor ward when the best interests of the minor will be promoted by such visitation.”

Bottom Line: Based on the Second DCA’s analysis in the grandparent-visitation-rights context (i.e., guardians do not have the same privacy rights that natural parents enjoy) and the Third DCA’s willingness above to approve orders entered in the absence of any meaningful due process for the ward’s spouse, it appears that in Florida interested third parties should expect to take a back seat to the trial court’s discretion in all material matters, and that such interested third parties have few (if any) constitutionally-mandated protections if they disagree with the trial court’s decisions. This assumption, if accurate, has profound implications for how Florida attorneys should represent clients involved in contested guardianship proceedings.

Tallahassee Memorial Regional Medical Center, Inc. v. Petersen, 2006 WL 88489 (Fla. 1st DCA Jan 17, 2006)

In this case the parents of a child apparently brain damaged during delivery filed a pre-suit petition to determine compensability under the Florida Birth-Related Neurological Compensation Act (the “Act,” see F.S. §§ 2005->Ch0766->Section%20301#0766.301″>766.301–2005->Ch0766->Section%20316#0766.316″>766.316). At the conclusion of these administrative proceedings, the administrative law judge (“ALJ”) awarded the parents lifetime medical expenses for their child, plus $100,000, plus reasonable expenses incurred in connection with the filing of their claim. The parents rejected this award and moved forward with filing their medical malpractice claims against the Tallahassee Memorial Regional Medical Center (“TMRMC”).

When counsel for the TMRMC learned of the parents intent to reject the ALJ’s award and sue instead, they immediately filed an emergency motion for appointment of a guardian ad litem. The trial judge said no and they petitioned the First DCA for writ of certiorari seeking review of the trial court’s non-final order. The First DCA upheld the trial court’s decision on two grounds. First, the defendants failed to demonstrate that the child’s parents were not acting in the best interests of their child. Second, in the absence of clear evidence indicating a conflict of interest, imposing a guardian ad litem would be a violation of the parents’ constitutional privacy rights.

The following are excerpts from the linked-to opinion addressing the two grounds put forward by the First DCA as underlying its decision:

Lack of Conflict of Interest:

“TMRMC fails to demonstrate that the interests of the Petersens are so adverse to that of Jennifer as to require the appointment of a guardian ad litem. The mere decision to proceed in an attempt to gain fuller recovery for the child is not, even in the face of some risk, tantamount to an adverse interest. By filing the complaint for medical malpractice in circuit court, the Petersens sought monetary damages for bodily injury including pain and suffering, and other general damages. These claims are not adverse to Jennifer’s interests. Indeed, the facts as presented indicate that the interests of Jennifer coincide fully with the interests of the parents. Cf. Mistretta v. Mistretta, 566 So.2d 836 (Fla. 5th DCA 1990) (holding that child’s interests were properly represented by mother where mother sought payment of child support from former husband who held himself out to others as the child’s father).” (Emphasis added.)

Constitutional Privacy Rights:

“The Florida Supreme Court has repeatedly held that natural parents have a right to make decisions about their child’s welfare without interference by third parties. See generally Von Eiff v. Azicri, 720 So.2d 510 (Fla.1998). In Von Eiff, the Florida Supreme Court held that “[n]either the legislature nor the courts may properly intervene in parental decision-making absent significant harm to the child threatened by or resulting from those decisions.” 720 So.2d at 514. As discussed above, TMRMC does not show that any significant harm to the child will result from the Petersens’ decision to waive the compensation award under the Act and seek further damages in the circuit court action. TMRMC has merely shown that the Petersens’ election of a civil remedy has some risk and does not preserve the guaranteed return of the administrative compensation award. This is an insufficient basis upon which to invade the Petersens’ fundamental parental privacy rights.” (Emphasis added.)

Any estate planner worth his or her salt knows by now that the commonly accepted practice of representing both a husband and wife in estate planning is fraught with potential conflict-of-interest issues. The best way to get your arms around this ethics minefield is to read the Florida Bar’s Advisory Opinion 95-4, and two excellent follow up Florida Bar Journal articles entitled Joint Representation of Spouses in Estate Planning: The Saga of Advisory Opinion 95-4 and Multiple Representation in Estate Planning: Beyond Advisory Opinion 95-4, Part 2.

These are not abstract, esoteric ethics questions. If you’re not careful, they can come back to bite you in a very big way. In a story reported here, a well established Texas estate-planning attorney and his firm are reported to have been hit with a judgment for $1 million in damages for breach of fiduciary duty to “Husband,” plus $2 million in punitive damages. The Texas attorney represented a couple. His firm also represented the wife’s mom. After drafting estate planning documents providing that all assets went to the surviving spouse (thus taking full advantage of the unlimited estate tax marital deduction), wife’s mom asked lawyer to rewrite will cutting husband out and making mom the beneficiary of wife’s estate (presto! no more estate tax marital deduction). Lawyer rewrote wife’s will, wife signed new will, no one ever said anything to husband (who was also lawyer’s client), wife dies, husband sues: lawyer gets slammed.

Here are a few excerpts from the linked-to story:

“A [Comal County, Texas] jury Tuesday slapped a $3 million judgment on one of New Braunfels’ oldest and most prestigious law firms in a lawsuit claiming gross negligence and malpractice.

If the verdict and jury award stands against attorney John Dierksen and his firm, Reagan, Burrus, Dierksen, Lamon and Bluntzer, it will be the largest ever in a Comal County court.

Jurors unanimously ruled the law firm and specifically Dierksen were grossly negligent, that the negligence injured Llano businessman Robert Maxwell — a New Braunfels native — and his businesses, Maxwell Marine and Meyer-Maxwell Properties, Ltd., among others, and that the law firm failed to meet its fiduciary duty to Maxwell — costing him more than $1 million.

Along with the $1 million from failure to meet fiduciary duty, jurors set exemplary or punitive damages of $1.5 million against Dierksen and $500,000 against the law firm for a total of just over $3 million.”

Source: Wills, Trusts & Estates Prof Blog

Siegel v. Novak, 2006 WL 119545 (Fla. 4th DCA Jan 18, 2006) Probate litigation is often rife with conflict of law issues. For example, it is not uncommon to have a trust governed by the law of one jurisdiction (e.g., Florida law) administered in another jurisdiction (e.g., New York). In this case the parties were litigating whether the decedent’s sons had standing to challenge trust disbursements made from their mother’s revocable trust prior to her death. Both sides agreed New York law applied to the trust accounting issue. The point of contention arouse around standing. Under New York law the sons had standing to sue, under Florida law they apparently did not. Question for Florida Court: Does New York law apply to the standing issue or does Florida law apply? In other words, is standing to sue a substantive or procedural matter for choice of law purposes? Palm Beach County Judge Gary L. Vonhof ruled the decedent’s sons lacked standing under Florida law and thus dismissed their claims on summary judgment. The Fourth DCA reversed holding that standing is a substantive matter for choice of law purposes, thus New York law applied because New York bore the most significant relationship to the trust, thus the decedent’s sons had standing to sue. The Fourth DCA explained its ruling as follows:

“In a choice of law context, Florida maintains the traditional distinction between substantive and procedural matters.” “As the forum state in this case, Florida law determines whether [the issue of standing] is substantive or procedural for choice of law purposes.” Generally, when confronted by a choice of law problem, a court will apply foreign law when it deals with the substance of the case and will apply the forum’s law to matters of procedure. Substantive law generally relates to the rights and duties of a cause of action, while procedural law involves the “‘machinery for carrying on the suit.'”. No Florida case has decided whether standing is a substantive or procedural matter for choice of law purposes. Recently, the eleventh circuit has indicated that “[u]nder Florida’s choice of law provisions, Florida law governs all substantive issues, including the question of whether an individual has standing and capacity to sue.” In Merkle v. Robinson, 737 So.2d 540, 542 (Fla.1999), the Florida Supreme Court held that “statute of limitation choice of law questions [should be treated] the same as ‘substantive’ choice of law questions which,**** Florida decides pursuant to the ‘significant relationship’ test.” In this area, the question of standing to assert a claim is analogous to a statute of limitations defense. Both issues relate to whether a cause of action may proceed; neither involves the “machinery for carrying on the suit” once the right to proceed has been determined. The ability to bring an action at law is a “most valuable attribute” of a legal right, a factor favoring the classification of standing as a substantive matter. Here, the right of the [decedent’s sons] to challenge the distributions from the trust should be decided under New York law. For the challenged distributions, New York bears the most significant relationship to the trust. (Emphasis added; internal citations omitted.)

Smith v. Smith, 2005 WL 3555852 (Fla. 5th DCA Dec 30, 2005)

In this case counsel for the ward argued that as a matter of law where, as happened here, there is conflicting expert testimony regarding a person’s mental competence, the trial court is precluded from finding that there is “clear and convincing evidence” to support a finding of incapacity, as required by F.S. 744.331. Orange County Judge Lawrence R. Kirkwood didn’t buy this argument, and neither did the Fifth DCA, holding as follows:

Although the two experts hired by the defense disagreed with the conclusions drawn by the examining committee, this conflict in the evidence does not preclude a finding that the evidence of incompetency was clear and convincing. Nor would conflicts in the evidence require the court to find a lack of clear and convincing evidence. A similar problem existed in Manassa v. Manassa, 738 So.2d 997, 997 (Fla. 1st DCA 1999). In rejecting the argument that conflicts in the evidence precluded a finding of incompetency, the court explained: In the case at bar, the record is replete with conflicting medical reports and testimony regarding Manassa’s competence. It is the purview of the trial court to determine the credibility and weight of the evidence. See LeWinter v. Guardianship of LeWinter, 606 So.2d 387, 388 (Fla. 3d DCA 1992). This court will not reweigh the testimony and evidence, or substitute its judgment for that of the trier of fact. See In re Adoption of Baby E.A.W., 658 So.2d 961, 966 (Fla.1995). The trial court noted that, with the exception of the examining committee which has seen hundreds of cases to determine incapacity, the medical reports were from physicians who are not professionals in mental health care proceedings. The examining committee opined that Mr. Manassa was incapacitated, and it recommended appointment of a plenary guardian. The trial court weighed the evidence and accepted the recommendation of the examining committee. Id. at 997-998. In Shaw v. Shaw, 334 So.2d 13 (Fla.1976), the court said that appellate courts have a right to reject “improbable testimony or evidence.” Id. at 16. However, this case does not involve improbable testimony or evidence. It involves multiple experts with competing views, and the court found the evidence of the four experts appointed by the court to be “clear and convincing evidence,” which the court properly could do.

McEnderfer v. Keefe, 2006 WL 129320 (Fla. Jan 19, 2006) In 2005 I wrote here about the Florida Supreme Court’s decision in Warburton construing Florida’s homestead laws as applicable to otherwise freely devisable homestead property. This was a companion case to the 2005 decision, and the Court merely restates its earlier position.

This Court recently quashed Warburton and answered the certified question in the negative. We therefore answer the certified question in this case in the negative and hold that where a decedent is not survived by a spouse or minor children, the decedent’s homestead property passes to the residuary devisees, not the general devisees, unless there is a specific testamentary disposition ordering the property to be sold and the proceeds made a part of the general estate. See McKean v. Warburton, 30 Fla. L. Weekly S613, — So.2d —-, 2005 WL 2155180 (Fla. Sept. 8, 2005).

The following briefs were filed with the Court in this case: