Schlesinger v. Jacob

Schlesinger v. Jacob, --- So.3d --- (Fla. 3d DCA 2018)

In this decision, the 3rd DCA adopts the requirement that an attorney's services must benefit a ward or the ward's estate in order to be entitled to fees. The Court focuses on the different standards under the statutes to determine entitlement to fees, versus the standard to determine amount and reasonableness of fees
On one hand, F.S. 744.108(1) governs entitlement to fees, and provides:
A guardian, or an attorney who has rendered services to the ward or to the guardian on the ward's behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.
Case law construing this section has uniformly added in the requirement that the services must benefit the ward or the ward's estate, despite the fact that the word "benefit" appears nowhere in the statute.
On the other hand, F.S. 744.108(2) deals with the amount and reasonableness of fees once it is de…

Prewitt v. Kimmons

Prewitt v. Kimmons, 237 So.3d 1158 (Fla. 5th DCA 2018)
This decision rested on whether sufficient questions of fact were raised to preclude summary judgment regarding claims of breaches of fiduciary duty.  The beneficiary of an irrevocable trust sued her sister, one of the successor trustees, for breach of fiduciary duty, alleging that she had failed to distribute funds as provided for by the trust documents, failed to seek the return of $10,000 of trust assets wrongly retained by another of the successor trustees, and failed to return monies that she had purportedly misappropriated from the trust account prior to the settlor's death.  The Court held that questions of fact remained over the breach of fiduciary duty claim, where: (1) there was record evidence that the trustee had paid lease payments on a car that was ultimately conveyed to a beneficiary in contravention of the terms of the trust, (2) there was record evidence that the other successor trustee had received $10,000 fro…

Smith v. Smith

Smith v. Smith, 232 So.3d 509 (Fla. 1st DCA 2017)
This decision involves the question of whether a prenuptial agreement precluded the surviving spouse from seeking the removal of the co-personal representatives of the decedent spouse's estate.  The prenuptial agreement in question provided that the surviving spouse would "refrain from any action or proceeding to void or nullify to any extent the terms of any last will and testament or trust or testamentary substitute."  
The co-personal representatives argued that the above provision prevented the surviving spouse from seeking their removal. The spouse argued that the provision did not affect her rights she later acquired through subsequently executed estate planning documents, and that the waiver provisions did not extend to the interest she acquired in her husband's estate when she was named an income beneficiary of the marital trust created under the terms of his last will executed after the marital agreement.
The Co…

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…