Rubin on Probate Litigation

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  - http://www.floridatax.com/httpdocs/Atty%20Pages/Atty_RubinJ.html Chuck - http://www.floridatax.com/httpdocs/Atty%20Pages/Atty_Rubin.html

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

The Appellate Court Rules Committee of the Florida Bar has posted the following proposed three-year cycle amendments to the Rules of Appellate Procedure: http://www.floridabar.org/DIVCOM/JN/JNNews01.nsf/RSSFeed/3D5E1E6B4AD4C56185257B89006D327C .

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 , 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

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