Wilson v. Wilson

Wilson v. Wilson, --- So.2d --- (Fla. 4th DCA 2019)
This decision deals with whether subsequent to executing a prenuptial agreement, language in a decedent's trust directing the trustee to set aside "as much property as is necessary to satisfy the Wife's elective share" constituted a modification of the prenuptial agreement such that the wife could then elect to take her elective share. The Court found that it did not.
The prenuptial agreement contained a clear waiver of the elective share. It also provided that the agreement could only be modified in writing, signed by both parties. The agreement allowed the couple to make testamentary gifts to each other without invalidating the agreement. 
Following the decedent's death, the wife filed a notice of election to take her elective share in accordance with the trust. The Court held that the prenuptial agreement contained a clear and unambiguous waiver of the elective share. The creation of the trust did not modify the…

Manor Oaks, Inc. v. Campbell

Manor Oaks, Inc. v. Campbell, 276 So.3d 830 (Fla. 4th DCA 2019)
It is not uncommon for a health care surrogate or an agent under a power of attorney to sign a nursing home admission form for an elderly family member who is unable to do so for himself. These admission forms may contain more than just health care related or financial related provisions, so it is important to consider the nature and the scope of the family member's authority in determining whether they can bind someone to all of the terms of the agreement.
In this instance, the nursing home admission form contained a binding arbitration provision. The nursing home argued that because the form was signed by the decedent's sons as surrogates under a document entitled "Durable Power of Attorney Containing Health Care Surrogate Decisions," the decedent was bound by the arbitration clause. The Court found that an arbitration provision can be enforced if either: (1) the power of attorney makes a specific grant …

Herman v. Bennett

Herman v. Bennett, --- So.3d --- (Fla. 1st DCA 2019)
In the world of creditor's claims, the difference of just one day can make a world of difference. Here, a creditor filed their claim exactly 3 months and one day after the date of publication of the notice to creditors. The Court held that F.S. 733.702(1) is unambiguous- the three month limitations period begins to run on the date of the first publication of the notice to creditors. Florida Rule of Judicial Admin. 2.514, which provides for excluding the day of the event that triggers a time period when a statute does not specify a method of computing time is inapplicable here, because the statute clearly specifies the method for computing time. Thus, the claim was untimely and must be stricken.

Wallace v. Comprehensive Personal Care Services, Inc.

Wallace v. Comprehensive Personal Care Services, Inc., 275 So.3d 782 (Fla. 3d DCA 2019)
This decision highlights the disconnect between the Appellate Courts and the reality of practicing guardianship law. Here, prior to an incapacity proceeding, the court in a related trust matter entered a protective order dealing with the dissemination of medical records. Later, prior to filing for guardianship, the AIP's son sought an order from the court allowing him to attach those medical records to his petition to determine incapacity. The trial court denied his request.
The Appellate Court affirmed, basing its analysis on the procedures set forth in Chapter 744. Apparently, the Court has a great deal of faith that the members of examining committees will abide by the provisions of Chapter 744. The Court seemed to feel that because the petitioner can outline the factual basis for their beliefs in their petition, can name the AIP's attending physician, and because F.S. 744.331 requires at …

Mullins v. Mullins

Mullins v. Mullins, --- So.3d --- (Fla. 5th DCA 2019)
This decision deals with the effect of an order determining homestead on a beneficiary's interest in the homestead property. Specifically, the Court considered whether a consent to the entry of an order determining homestead, where that order does not properly lay out the ownership interests in the property, is enough to actually alter the parties ownership interests. The Court held that it did not.
The decedent in question left her homestead to her three children, subject to a life estate for two of the three children for as long as they wanted to live there. The probate court entered an order determining homestead which stated that the homestead was devised in equal shares to the three children but failed to mention the life estates. The Court considered whether the homestead order in and of itself could eradicate the life estates. It held that because the consents to the homestead order were not formal agreements to modify the…

Kaminsky v. Hecht

Kaminsky v. Hecht, 272 So.3d 786 (Fla. 4th DCA 2019)
Does the Florida long-arm statute reach trustees of trusts administered elsewhere with beneficiaries in Florida? Committing a tortious act within the state is one of the enumerated acts which can give rise to jurisdiction for purposes of the long-arm statute. Fla. Stat. 48.193(1)a.2. While physical presence is not required to commit a tortious act for purposes of the long-arm statute, mere injury in Florida from a tortious act committed elsewhere is not enough.
Here, the Court found that the trustee of a trust who had never resided in Florida, had not administered the trust in Florida and did not hold trust assets in Florida, but may have failed to account to Florida beneficiaries or mismanaged trust assets for Florida beneficiaries did not meet the requirements of the long-arm statute for the Florida court to have jurisdiction over the trustee.

Alexander v. Harris

Alexander v. Harris, --- So.3d --- (Fla. 2nd DCA 2019)
In this 2nd DCA case, the Court once again considered the ability to garnish distributions from a trust for the enforcement of a child support order. It held that the distributions made to or for the benefit of the father from a discretionary special needs trust could be garnished for child support payments owed to a minor child.
The trust in question was a special needs trust funded from the settlement of a product liability action. The father has no control over the trust, cannot compel the trustee to make distributions, and does not personally receive any disbursements from the trust because they are made directly to third parties. The mother argued that pursuant to F.S. 736.0503, the discretionary distributions are not protected from continuing garnishment for support payments. 
As you may recall, in 1985, the Florida Supreme Court held in Bacardi v. White that a continuing writ of garnishment may attach to discretionary distribu…