Showing posts from 2013

Geezil v. Savage

Geezil v. Savage , 2013 WL 6246205 (Fla. 2d DCA 2013) This case involved a dispute between the decedent's daughter from his first marriage and his second wife.  The decedent apparently drafted his own valid will which divided his property between the daughter and the wife.  Unfortunately, the will had several deficiencies, including devises of non-probate assets and a lack of a residuary clause, which resulted in years of litigation, substantially depleting the estate.   On appeal, the Court was asked to consider the order in which the estate assets would deplete, given that the litigation created larger than expected class 1 expenses.  The wife made a claim for funeral and burial expenses, which was ultimately settled by the co-personal representatives pursuant to F.S. 733.708.  The probate court held that the funeral expenses could be paid to the wife from an investment account that was a general devise to the daughter in the will.  The Appellate Court found that althoug

Pierce v. Pierce

Pierce v. Pierce , 2013 WL 6438955 My father, Chuck Rubin, recently posted an excellent summary of the Pierce v. Pierce  decision dealing with an attempt by an estate beneficiary and signatory to a settlement agreement's attempt to vacate that settlement agreement: RUBIN ON TAX: FATIGUE, DISTRESS, AND SECOND THOUGHTS NOT ENOUGH ... : Most will and trust disputes in Florida involve at least one mediation attempt – either by order of the trial court or agreement of the part...

Cody v. Cody

Cody v.  Cody , 2013 WL 6171299 In this case, the Appellate Court was forced to overrule a strange and confusing trial court decision regarding the distribution of property from an estate.  In 2007, a husband and wife executed wills.  The wife died shortly thereafter.  The husband's will specifically named his wife's three sons (his step-sons) as his children, and named one of those sons as his PR.  The will also made a devise of real property as follows: "(b) I devise the house and 12.5 acres located at 2800 Myree Lane, Pace, FL 32571, to my husband, Earlier T. Martin, Jr.  Should Earler T. Martin predecease me, then I devise the house and acreage in my son, Buford Cody, to divide between my heirs, as he sees fit and proper." The Court noted that it was clear that this devise included a typographical error copied over from the wife's will, and should have said the house and property were distributable to the wife if she survived him.  The will  l

Cessac v. Stevens

Cessac v. Stevens , 2013 WL 6097315 (Fla. 1st DCA 1013) We don't often see cases regarding the exercise of a power of appointment but the First DCA recently addressed the validity of such an exercise in this case.  The will at issue included a provision that stated: "Included in my estate assets are the STANTON P. KETTLER TRUST, FBO, SALLY CHRISTIANSEN, under will dated July 30, 1970, currently held at the Morgan Stanley Trust offices in Scottsdale, Arizona, and two (2) currently being held at Northern Trust of Florida in Miami, Florida." Other than the quoted language, the will did not mention the trusts or mention any powers of appointment. The trusts described contained powers of appointment which authorized the decedent to direct who would receive the trusts assets upon her death.  The trusts required her to make specific reference  to the power in order to exercise it.      The trial court entered a judgment declaring the trusts' assets were not

West v. West

West v. West ., 2013 WL 5989234 (Fla. 4th DCA 2013) This case involved a family dispute among two sons of the decedent- one was named personal representative of the father's estate, and filed two claims in his father's estate, and the other objected to the claims.  To resolve the dispute, the personal representative/son filed a "Petition to Enforce a Claim" in the probate deivision.  The other son moved to dismiss or strike, since the Petition did not constitute an "independent action" as required by F.S. 733.705.  The trial court dismissed the claims. The Appellate Court noted that in 2008, the chief judge of the Fifteenth Circuit in Administrative Order 6.102-9/08 declared that "independent actions" must be filed in the civil division.  Here, since the personal representative filed his claims in the wrong division, and he was barred from re-filing because the thirty day statutory period had expired, his only option was to either have his

Perelman v. Perelman

Perelman v. Perelman , 2013 WL 5807358 It is not uncommon here in South Florida for cases to arise that center around disputes about where the decedent was domiciled at their death, given how many retirees move here at the end of their lives.  This case centered around a will contest between a son, arguing that his mother was a domicile of Pennsylvania, and a husband, arguing that his wife was a domicile of Florida.   The issue on appeal centered around whether the Florida trial court should have stayed the Florida proceeding under the principle of priority.  The "principle of priority" is the idea that the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with this case.  It is not a mandatory principle, however absent extraordinary circumstances, it is an abuse of discretion to fail to respect the principle of priority. The Court explained that the exercise of jurisdiction by the foreign court will trigger priority.  It emp

Golden v. Jones

Golden v. Jones , 38 Fla. L. Weekly D2259a The debate about the timeliness of a creditor's claim filed by a known or reasonably ascertainable creditor after the three-month period following publication of notice to creditors continues! As you may know, the First and Second Districts in the Lubee and Morgenthau  decisions have held that even a reasonably ascertainable creditor who was not served with a notice to creditors is required to file a claim within the publication period of three months.  Under this line of thought, whether a creditor was reasonably ascertainable is immaterial. On the other hand, the Fourth District, in Puzzo , has held that any claims of known or reasonably ascertainable creditors, though filed after the three-month period following publication of notice of administration, should not be stricken as untimely if filed prior to the earlier of 30 days after service of notice of administration or two years after the decedent's death.  As a resul

Martinez v. Cramer

Martinez v. Cramer , 121 So.3d 580 (Fla. 3d DCA 2013) NOTE: THIS DECISION SUPERSEDES THE DECISION DISCUSSED  HERE The Court withdrew its opinion dated June 19, 2013, and released this new opinion which reversed and remanded the appointment of an emergency temporary guardian since counsel was not appointed for the Ward until after  the appointment of the emergency temporary guardian.  In its earlier opinion, the Court found that since the appointment of the emergency temporary guardian remained in effect after counsel was appointed for the Ward, the failure to appoint counsel did not rise to the level of reversible error.

Congrats Chuck Rubin!

A huge congratulations is in order for Chuck Rubin for being elected as an ACTEC (American College of Trust and Estate Counsel) Fellow!  

Drelich v. Guardianship of Drelich

Drelich v. Guardianship of Drelich , 2013 WL 5629770 The intersection of guardianship and family law often presents a new spin on our typical guardianship fact patterns.  Here, husband and wife were married with both pre and post nuptial agreements.  Husband later filed for dissolution of the marriage.  The wife filed a motion to stay or abate the divorce proceedings, and alleged that her husband was incapacitated, that she anticipated filing a guardianship proceeding and that she was asking for fees, since her husband (or really, his agents), filed the divorce proceeding in bad faith. The wife's guardianship pleadings did not mention the pending divorce.  In his response, the husband denied the allegations in her petition and moved for fees and costs based on his wife's bad faith in filing the guardianship proceeding.  He admitted that he was depressed, but said he was completely capable of making his own decisions. The examining committee unanimously found the hu

Robert Sitkoff on Implementing Freedom of Disposition

Despite being the daughter of a trust and estates lawyer (hi Dad!), it took Robert Sitkoff's course at Harvard Law School to really inspire me to pursue a career in this field.   This morning, Professor Gerry Beyer of Texas Tech University School of Law posted the following link to a new article by Professor Sitkoff, which I highly recommend:

Representing Estate and Trust Fiduciaries

This morning, the litigation department from our firm presented on Representing Estate and Trust Fiduciaries at SunTrust's roundtable seminar.  For those who are interested, here is a link to our materials. If you have any questions or would be interested in our litigation department putting on a similar seminar, please let me know!

Levya v. Daniels

Levya v. Daniels , 2013 WL 5313600 (11th Cir. 2013) It is not uncommon for probate and trust cases to involve beneficiaries in one or more jurisdictions and a fiduciary in another.  Here, the personal representative was a citizen of Texas but was acting as personal representative of a Florida estate.  Two of the beneficiaries sued the personal representative, one from Florida and the other from Colorado.  The beneficiaries argued that the district court had diversity jurisdiction, since they were citizens of Florida and Colorado, and the personal representative was a citizen of Texas.   The Court held that since the personal representative was being sued in his fiduciary capacity rather than his personal capacity, he was deemed a Florida citizen for purposes of the lawsuit. Thus, the district court properly dismissed the complaint for lack of diversity jurisdiction. 

Lee v. Estate of Payne

Lee v. Estate of Payne , 148 So.3d 776, 2013 WL 5225200 (Fla. 2d DCA 2013) This case involved a decedent's fiance's attempt to admit the decedent's Colorado holographic will in Florida (where the decedent owned three homes).  The holographic will left the fiance one of the houses, plus $40,000 from the sale of the other two houses.  He left his father the remainder of the sale proceedings. The decedent's sister and Colorado personal representative filed a Petition for Administration in Florida, and alleged that the holographic will was not valid under F.S. 732.502(2), since it was not executed in compliance with F.S. 732.502(1).  She listed the decedent's minor daughter as the only beneficiary of the estate. The fiance sought to have the Florida court admit the holographic will to probate to give full faith and credit to the Colorado court.   F.S. 734.104 say that a foreign will that devises Florida real property and is admitted to probate in anothe

Searle v. Brent

Searle v. Brent , 2013 WL 5225218 (Fla. 2d DCA 2013) In guardianship proceedings, the court is required to consider whether a less restrictive alternative to guardianship exists before giving a ward's rights to a guardian.  Here, a daughter brought a guardianship proceeding to determine her mother's capacity, because she feared her mother was being taken advantage of by her caregivers.  The court held an evidentiary hearing and heard testimony, and then declared the mother to be incapacitated and appointed a guardian. In this appeal, the mother argued that the trial court erred by not considering less restrictive alternatives to guardianship.   Her daughter had filed a "Verified Statement by Interested Person Pursuant to F.S. 744.331(6)(f)," alleging that her mother's estate planning documents were invalid because of her mother's lack of capacity and/or undue influence.  In her verified statement, she included facts and finding by medical experts.  Th

In re Brinkman

In re Brinkman , FLWSUPP 2010BRIN The decedent died in 2007, leaving no will, and no assets other than a potential medical malpractice/wrongful death suit.  The surviving spouse, along with the decedent's two adult daughters, were his only heirs.  The surviving spouse was appointed personal representative of the estate, and she hired a law firm on a contingency basis to represent the estate in the wrongful death litigation.  She also hired a different law firm to represent her in the probate estate. The law firm representing the personal representative in the probate estate used a fee agreement which provided that they would be paid 3% of the estate.  It also provided that in cases where the personal representative pursues a claim or files a lawsuit, the attorneys fees would be calculated based on the net recovery of that lawsuit.  The wrongful death suit settled for $750,000, with a net recovery of approximately $434,000.  The law firm handling the probate estate claim

Fintak v. Fintak

Fintak v. Fintak , 120 So.3d 177, 2013 WL 4483101 (Fla. 2d DCA 2013) This case involved a challenge to a decedent's self-settled irrevocable trust.  The trust was established during the decedent's life, was funded with the decedent's money and during his life, the decedent was the sole beneficiary.  On his death, the trust was to be divided into separate shares for the decedent's children, and made no provisions for the decedent's life.  The decedent and two of his sons were named as the initial trustees of the trust. Before he passed away,  the decedent sought to challenge the trust but unfortunately he died before the litigation was concluded, and his wife was substituted as the plaintiff as his personal representative.  The trial court granted summary judgment in favor of the trustees, because the decedent failed to renounce the benefits he received under the trust and because his wife took inconsistent positions in the probate proceeding and the trust l

Staum v. Rubano

Staum v. Rubano , 120 So.3d 109, 2013 WL 4081055 (Fla. 4th DCA 2013) In 2007, a decedent died while domiciled in New York, owing a debt to his nursing home in New York.  The nursing home filed a claim in both the domiciliary estate in New York, and subsequently in the ancillary estate here in Florida.  The nursing home also sought an accounting of the ancillary estate, and asked the court to transfer the ancillary estate's assets to the New York domiciliary estate. The personal representative sought to dismiss the nursing home's petition because its claim was untimely, as it was filed more than two years after the decedent's death.  The trial court agreed, and granted the motion to dismiss. On appeal, the Appellate Court agreed that the claim was untimely in Florida , but stressed that to the extent the trial court found that the claim against the New York  estate was untimely, it reversed.  Even though it said the claim was untimely, the Court then found that

Gordon v. Kleinman

Gordon v. Kleinman , 120 So.3d 120,  2013 WL 4081027 (Fla. 4th DCA 2013): Florida Statutes § 733.109(1) provides that a proceeding to revoke probate of a will can be commenced by any interested person, including a beneficiary under a prior will.  The Probate Code defines an "interested person" as "any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved." Fla. Stat. § 731.201(23). To withstand a motion to dismiss, a petition for revocation of probate must do two things: (1) state the interest of the petitioner in the estate, and (2) present the facts constituting the grounds on which the revocation is demanded.  Fla. P. R. 5.270.  Petitioner here sought to revoke probate of a 2009 will.  She was a beneficiary of the decedent's 1983 will, but was not a beneficiary under any  subsequent  wills leading to the 2009 will.  Because she alleged that she was a beneficiary under the 1983 will, and that all of

McCormick v. Cox

McCormick v. Cox , 38 Fla. L. Weekly D1723b (Fla. 3d DCA 2103): Here, McCormick, an attorney, prepared two trusts which owned a single asset- 100 acres in Massachusetts. At the time of the decedent/settlor's death, the property operated as a nine-hole golf course.  Following the decedent's death, McCormick arranged for an appraisal of the property as of his date of death.  The appraiser reported a fair market value of the property, as an operating golf course, of $2,500,000.  McCormick's billing records indicated that almost immediately McCormick began work to convert the property from a golf course to residential property.  Yet the appraisal he used on the decedent's estate tax return did not reflect this "highest and best use" of the property, nor did McCormick communicate with the beneficiaries about the value. The property ultimately sold to the Town of Lynnfield for $12,000,000.  To avoid capital gain tax, McCormick structured a like-kind exchange un

Dinkins v. Dinkins

Dinkins v. Dinkins , 2013 WL 3834371 (Fla. 4th DCA 2013) It is well established in Florida that penalty clauses in trusts are invalid.  Fla. Stats. 736.1108(1) provides that, "A provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or instituting other proceedings relating to a trust estate or trust assets is unenforceable."  Here, a husband's trust contained a conditional specific bequest of cash for his spouse, which said that if his wife made a valid disclaimer of her interest in the QTIP trust created under the trust, and she waived her right to elect the elective share, then she would receive a cash bequest of $5,000,000.  The wife argued that this was an unlawful penalty clause, since it would penalize her for taking the elective share by causing her to forfeit the $5,000,000 bequest.  The Court held that the clause is not  a penalty clause. The Court explained that if it were a penalty clause, the

Offensive Measures in Trust and Estate Litigation

Yesterday I spoke at the Florida Bar's Real Property and Probate and Trust Law's (RPPTL) Trust and Estate Litigation Committee meeting on Offensive Measures in Trust and Estate Litigation.  For those of you who are interested, my materials are available here for download: Offensive Measures in Trust and Estate Litigation

Florida Irrevocable Trust Amendment Charts Recognition

Thanks for the shoutout, Juan Antunez! l

M. Krumholz v. Guardianship of H.K.

M. Krumholz v. Guardianship of H.K. , 114 So.3d 341 (Fla. 3d DCA 2013) An order determining that an alleged incapacitated person (AIP) is totally incapacitated and appointing a plenary guardian to act on his or her behalf requires a recitation of the requisite findings of fact required by F.S. 744.331(6)(c).  F.S. 744.331(6)(c) requires that, "In determining that a person is totally incapacitated, the order must contain findings of fact demonstrating that the individual is totally without capacity to care for herself or himself or her or his property." Here, the trial court entered an order determining the AIP was totally incapacitated, that there were no reasonable alternatives to guardianship, that no alternatives would sufficiently address the AIP's problems and needs, and appointed a professional guardian.  The order contained the following description of the nature and scope of the AIP's incapacities: "Imminent danger that the physical or mental

Bishop v. Estate of Rossi

Bishop v. Estate of Rossi , 114 So.3d 235 (Fla. 5th DCA 2013) An order granting attorney's fees, whether in probate or otherwise, must contain two distinct findings: (1) whether the attorney is entitled to fees and (2) whether the amount of fees is reasonable.  Here, the trial court failed to address the second issue in its order, and thus the case was remanded for clarification on that issue. The Court discussed both prongs of the test: (1) Whether the attorney is entitled to fees: The question of whether an attorney is entitled to fees is typically a question of law.  While factual findings can be helpful, the Court explained that "entitlement to attorney's fees is based on the interpretation of contractual provisions...or a a pure matter of law..." Hinkley v. Gould, Cooksey, Fennell, O'Neill, Marine, Carter & Hafner, P.A. , 971 So.2d 955, 956 (Fla. 5th DCA 2007). (2) Reasonableness of fees: An order setting the amount of an

Syfrett v. Syfrett-Moore ex rel. Estate of Syfrett

Syfrett v. Syfrett-Moore ex rel. Estate of Syfrett , 2013 WL 3389547 (Fla. 1st DCA 2013) This case involved a dispute over ownership of two apartments owned by a decedent, and centered around whether those properties were properly transferred during the decedent's life, or whether the decedent lacked the capacity to effectuate the transfers.  The "Estate" sought a declaratory judgment regarding ownership of the units.  The Appellant, one of the purported owners of the units, filed a motion to dismiss for failure to adequately state a claim for declaratory relief.  The Court found that the complaint did not meet the pleading standard for declaratory judgment because: (1) the complaint failed to include allegations that there was a bona fide, actual, present practical need for a declaration, (2) the plaintiff designated in the complaint was the Estate, not the co-personal representative of the Estate (citing Fla. Stats. § 733.612(20), granting the personal representativ

Grasso v. Grasso

Grasso v. Grasso , 113 So.3d 855 (Fla. 2d DCA 2012) A clever client/beneficiary will often quickly realize during trust litigation how little power he or she has to stop the trustee from doing certain actions while litigation is pending.  Often, the beneficiary will want to enjoin the trustee from performing those actions, such as disposing of trust assets, during the litigation, because they know that if they challenge the trustee's actions after  the fact, they will face an uphill, costly legal battle.  In this case, the trial court granted a settlor/beneficiary's request for a temporary injunction, and enjoined the trustees of the trust from disposing of trust assets.  The injunction was granted at the same time the trial court granted a motion to dismiss against the settlor/beneficiary for lack of personal and subject matter jurisdiction, with leave to amend.   The Appellate Court held that a grant of a motion to dismiss with leave to amend is not  an appealable fina

Grant v. Bessemer Trust Co. Inc.

Grant v. Bessemer Trust Co. of Fla., Inc. ex rel. Grant , 4D11-3614, 2013 WL 3335064 (Fla. Dist. Ct. App. July 3, 2013) Here, the decedent's son, Thomas Grant, sought the construction of his father's will and other declaratory relief against Bessemer Trust, the personal representative of his father's estate.  He alleged that Bessemer had violated a codicil of his father's will, which he claimed required Bessemer to provide him with lifetime employment with the parent company of the corporate conglomerate founded by his father.   The trial court found the language in the codicil to be ambiguous and thus held an evidentiary hearing on the meaning of the codicil.   During his life, Thomas' father was concerned that his son would not have a job within his company once he was gone.  He had many discussions with various parties involved in his estate plan and his business about how to accomplish this.  He was advised to do so by an employment agreement rather

Estate of Jenner v. Manor Pines Convalescent Center, LLC

Estate of Jenner v. Manor Pines Convalescent Center, LLC , 11 So.3d 648 (Fla. 4th DCA 2013) We do not often see cases litigated regarding health care surrogates, so I was pleased to see this decision this morning.  This case involved a husband, who as his wife's health care surrogate, signed an agreement with a nursing home that contained a mandatory arbitration clause.  Years later, the wife's estate sued the nursing home for negligence and intentional conduct resulting in injuries to the wife.  The trial court found that the husband, as his wife's properly designated health care surrogate, had the authority to enter into the agreement with the nursing home containing the arbitration clause. I was disappointed that the more interesting legal question of whether the husband could bind his wife to the arbitration provision in the Agreement as her health care surrogate was not answered by the Appellate Court, because unfortunately, the health care surrogate form that


For those of you stopping by from Rubin On Tax, I'd just like to say welcome to Rubin On Probate Lit. My goal is to provide estate and trust practitioners in Florida with a one stop guide to the latest and greatest in probate, estate and guardianship litigation.  Unlike other blogs in this area, I hope to provide my readers with up-to-date case and statutory updates, and I'd like to alleviate the need for my readers to have to look anywhere else for the latest news in this area.  If you have any questions or comments, I'd love to hear them! I can only hope to follow in my father's footsteps with his popular Rubin On Tax blog.  To learn about our firm and our practice, you can check out:   Jenna  - Chuck -

Estate of Kester v. Rocco

Estate of Kester v. Rocco , 38 Fla. L. Weekly D1387a, 2013 WL 3155849 This case involved an interesting discussion of what evidence an appellate court believes is appropriate to consider in cases of undue influence and lack of capacity.  Here, unlike most of these cases that involve challenges to the estate planning documents themselves, two of the decedent's five children challenged the inventory of estate assets filed by one of their siblings, the personal representative of their mother's estate.  The sister neglected to list several financial accounts that were payable on death or joint accounts with right of survivorship, on which the sister and two other siblings were listed as beneficiaries.  The trial court found that the sister had exercised undue influence over the mother, had breached her fiduciary duties to the estate, and took possession of the accounts in question as a constructive trustee rather than a beneficiary. The Appellate Court found the evidence i

Proposed Amendments to Florida Rules of Appellate Procedure

The Appellate Court Rules Committee of the Florida Bar has posted the following proposed three-year cycle amendments to the Rules of Appellate Procedure: .

Dennis v. Kline

Dennis v. Kline , 3d DCA, June 19, 2013, 120 So. 3d. 11, 2013 WL 3014115 This case involves a beneficiary of a trust who adopted a 27-year old woman, which impacted who would inherit under a trust created by the beneficiary's father.  In simple terms, the trust involved both a Marital Trust and a Family Trust, which was further divided into Family Trust A and Family Trust B.  While Family Trust B granted the settlor's children the ability to appoint the assets in his or her trust share, Family Trust A constrained the distribution of each child's share to the Settlor's "issue."  The Trust (and the Settlor's will) defined "issue" as "lineal descendants forever," with the provision that "words of relationship in any degree includ[e] legally adopted persons."   One of the beneficiary's siblings sought a declaratory judgment that would construe the Trust to exclude adult adoptees from becoming qualified beneficiaries as

Martinez v. Cramer

Martinez v. Cramer , 4th DCA, Case No. 4D13-405, June 19, 2013 NOTE: THIS DECISION HAS BEEN SUPERSEDED, SEE DISCUSSION  HERE The Court held that an alleged incapacitated person is entitled to have counsel appointed at the same time that an emergency temporary guardian is appointed for that person.  Typically in guardianship, an alleged incapacitated person is entitled to have independent counsel to represent him or her.  In this case, the trial court had already determined that the AIP needed a guardian of the property (but not person), but a later dispute arose regarding where the Ward should reside.  At a hearing on a temporary injunction, the trial court decided to appoint an emergency temporary guardian for the Ward’s person, but did not appoint counsel for the Ward until after the emergency temporary guardian was appointed.  Appellant relied on F.S. 744.3031(1), the statute governing emergency temporary guardianship, which states that, “The court shall appoint counsel to repr

Earlier Posts

April 15, 2013 Ferguson v. Carnes , 15th Circuit, Case No.: 502010CA027101XXXXMB While not strictly an estate or trust case, probate litigators often find themselves drawing on other disciplines within family disputes over estates and trusts. Here, two siblings, whose mother frequently threatened to disinherit one or both of them, promised each other that if their mother did in fact disinherit one of them, the sibling that the mother did not disinherit would split the estate with the other sibling. Lo and behold, mom disinherited her son and left her entire estate to her sister, and unsurprisingly, the sister then refused to split the property with her brother. The lower court said the agreement was an unenforceable promise because there was no consideration. However, appellate court disagreed, noting that a promise will be deemed sufficient consideration when a party agrees to do something they are not bound to do. The court found that the siblings’ mutual promises to split their