Stuart v. Ryan

Stuart v. Ryan, --- So.3d --- (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, --- So.3d --- (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…

Hernandez v. Hernandez

Hernandez v. Hernandez, 230 So.3d 119 (Fla. 3d DCA 2017)
In guardianship cases, the probate court has discretion to determine who is an "interested person" in a particular proceeding based on the particular purpose of, and the matter involved in, that proceeding. In this proceeding relating to the payment of attorney's fees from a Ward's assets, the Ward's son alleged that he had standing as an interested person to object to the payment of those fees.  
The attorney's fees being sought in this case generated from the following proceedings: (1) After one of the Ward's sons allegedly mistreated her, her other son petitioned to be appointed as her plenary guardian, to which the first son objected. (2) Once the second son was appointed as plenary guardian for his mother, he engaged in an adversary proceeding against the first brother and his family for mistreating the mother. (3) The second son, as guardian, petitioned to sell the Ward's property to pay for he…

Winslow v. Deck

Winslow v. Deck, 225 Fla.2d DCA 276 (Fla. 4th DCA 2017)
This decision centers on technical pleading requirements and a trial court's unwillingness to allow a party to amend their pleading to comply with those rules.  Specifically, this decision deals with the dismissal of a counterpetition for administration as untimely pursuant to F.S. 733.212(8), which gives interested persons 3 months to contest the validity of a will, among other things.  The Court reversed the trial court's dismissal.
The decedent in this case left two competing wills- one leaving his assets to his two children, the other leaving his assets to his friend.  His daughter petitioned to have the first will admitted to probate and was appointed as personal representative.  Later, the friend filed the second will, with an emergency petition to revoke the daughter's letters of administration, a counterpetition for administration, an objection to the daughter's petition for appointment as personal represent…

Sudman v. O'Brien

Sudman v. O'Brien, 218 So.3d 986 (Fla. 2d DCA 2017), 2017 WL 1829479
This result in this decision should serve as a cautionary tale for all parties involved in litigation - the failure to properly respond to a request for admission will be treated as a deemed admission pursuant to Florida Rule of Civil Procedure 1.370(a), which could completely alter the disposition of a case.  Here, the surviving spouse sought to take her elective share from her husband's estate.  The trustee of her husband's trust objected to her election, and served a request for admission on the wife asking her to admit that she executed a prenuptial agreement with the decedent prior to her marriage.  The wife did not respond.  As a result, the trial court held that the request was deemed admitted, and granted the trustee's objection to her election to take the elective share.
The Appellate Court upheld the trial court's decision.  It explained that Florida Rule of Civil Procedure 1.370(a) provid…