Posts

Boren v. Rogers

Boren v. Rogers, --- So.3d --- (Fla. 5th DCA 2018)
Writs of certiori are rarely available in discovery disputes, because in most cases, the harm caused by an improper ruling on discovery can be corrected on appeal.  Here, however, the trial court denied the plaintiff the ability to conduct discovery about a decedent's prior estate planning documents.  Her entire argument was based on the idea that she was a beneficiary of these prior estate planning documents, and therefore she had standing to contest certain newer documents that she believed were the product of undue influence. Because the trial court simply granted the defendant's motion for protective order, without making a finding of good cause that the discovery not be had, the Court granted the petition for writ of certiori and quashed the protective order. It noted that the trial court's order was insufficient because the document request was seeking items that could be admissible at trial and were reasonably calcul…

Cohen v. Shushan

Cohen v. Shushan, --- So.3d --- (Fla. 2d DCA 2017)
In Florida, a "surviving spouse" receives certain benefits- they can take an intestate share of the deceased spouse's estate and they may also be entitled to an elective share, family allowance, homestead and so on. Under principles of comity, Florida courts will recognize the marriage of citizens of a foreign country if that marriage was valid under foreign law.  Here, a surviving child of a decedent and a purported spouse of the decedent disagreed regarding whether a marriage would be deemed valid under Israel law, and as a result whether the marriage should be recognized by the Florida Probate Court for inheritance purposes.
After hearing expert testimony on Israeli law, the trial court held that because the surviving spouse would be considered the decedent's "reputed spouse" under Israeli law, she should take under Florida's intestacy law.  A "reputed spouse," translated from Hebrew, means &…

Landau v. Landau

Landau v. Landau, 230 So.3d 127 (Fla. 3d DCA 2017)

Normally, an injunction is considered to be a serious form of relief, and courts typically will not grant them unless a high burden is met.  Here, however, the Court upheld an injunction freezing trust assets, based on the probate court's "inherent jurisdiction" to protect the assets under its supervision. The Court held that in this case, where the Trustee, who was also a beneficiary of the trust, had been sued by a beneficiary for an accounting, breach of trust, and other causes of action, the Trustee's due process was not violated by an injunction order freezing the trust assets until the accounting was completed.

Stuart v. Ryan

Stuart v. Ryan, 232 So.3d 418 (Fla. 4th DCA 2017)
This decision is a nice review of the availability of exceptions to Florida homestead creditor protection. Despite the fact that the discussion about exceptions to homestead being dicta,  because the property in question was determined to not be homestead property, the decision provides a summary of the status of the law in this area.
The Florida Constitution lists only three exceptions to our homestead creditor protection: (1) government entities with a tax lien or assessment on the property; (2) banks or other lenders with a mortgage on the property which originated from the purchase of the property; and (3) creditors with liens on the property which originated from work or repair performed on the property.  The Court acknowledged that the Florida Supreme Court had recently recognized a fourth exception for alimony creditors, and that other Florida courts had found other exceptions for specific factually distinct situations.  It conclu…

Flanzer v. Kaplan

Flanzer v. Kaplan, 230 So.3d 960 (Fla. 2d DCA 2017)
The Court here considered when a party must bring an action to challenge the validity of a trust purportedly procured by undue influence.  While the Florida Trust Code prescribes when a challenge to the validity of a trust may be started (when it becomes irrevocable or upon the settlor's death), the Trust Code does not specify a limitations period for challenging the Trust.  As a result, we must look to the general rules for limitations contained in Chapter 95.  
In this situation, the daughter of the settlors of an irrevocable trust tried to challenge that irrevocable trust as the product of undue influence.  The trustees of the trust argued that her challenge was time barred because more than four years had passed since the trust had been created.  The daughter argued that the delayed discovery doctrine should apply, because undue influence is considered a "species of fraud."  The delayed discovery doctrine provides tha…

In re Guardianship of Bloom

In re Guardianship of Bloom, 227 So.3d 165 (Fla. 2d DCA 2017)

While this decision involved a lengthy description of prior litigation among the various competing parties in this guardianship, and ultimately trust and estate dispute, the takeaway of the decision is simple.  The Court noted an ambiguity in F.S. 736.1005 regarding when notice must be given of an application for attorney's fees, and held that, "an applicant for attorney's fees under section 736.1005 must serve an application for attorney's fees to the parties identified in the statute contemporaneously with the filing of the application with the court" (emphasis added).

Sarfaty v. M.S.

Sarfaty v. M.S., --- So. 3d --- (Fla. 3d DCA 2017)
In this guardianship decision, the Court considered how strictly to interpret F.S. 744.331 and FPR 5.550, dealing with the required procedures following the filing of a petition to determine incapacity. It held in situations like this one, where the procedural deficiencies were a result of actions of the parties and occurred with everyone's knowledge, such deficiencies are not enough to result in a dismissal of the petition without leave to amend.
The alleged deficiencies were twofold.  First, counsel for the AIP argued that the petition should be dismissed because of the alleged failure of court-appointed counsel to read the petition and form notice to the AIP.  Second, counsel argued that the petition should be dismissed because the examining committee members did not file their reports within the fifteen day period required by F.S. 744.331(3)(e).  The trial court dismissed the petition and ruled orally that an amendment to the pe…