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 respective inheritances with each was sufficient consideration, since they each gave up the possibility of inheriting more than the other in return for insuring that neither would be disinherited in whole or in part. While the lower court looked at each sibling’s promise independent of the other’s, the appellate court found that the promises had to be looked at together, and deemed them to be “mutual corresponding promises.”


In re Guardianship of J.S.J. v. Alejandro J. Pena M.D. and Physicians Associates of Florida, 5th DCA, Case No. 5D12-1113
In this guardianship case, a minor child was born severely brain damaged, and a guardianship was set up, whereby the mother was named legal guardian of the minor’s property. Parents, individually and as natural guardians (and notably not as guardians of the child’s property), filed a medical malpractice negligence complaint against the child’s treating physicians. In the meantime, the mother was removed as legal guardian of the minor’s property and was replaced by an independent guardian. The physicians won the suit, and the trial court entered a final cost judgment against the parents for over $80,000. The physicians then filed a motion to compel the successor guardian to fill out a fact information sheet as a “judgment debtor”. The court held that the parents' decision to bring the lawsuit on behalf of their minor child cannot implicate the assets held by the legal guardian where the legal guardian has not consented to or participated in the litigation, and where no court approval for the expenditure was sought or obtained. 


Patrowicz v. Cynthia Wolff, 2d DCA, Case No. 2D12-5535 (April 5, 2013)

Plaintiff sought the entire estate planning file relating to decedent’s estate and defendant filed written objection, asserting attorney-client privilege. The lower court compelled discovery of the information, but the appellate court overruled, because the trial court did not review the documents in camera before deciding whether the attorney-client privilege applied.


April 17, 2013

Estate of Eisen v. Philip Morris USA, Inc., 3D12-1114, 2013 WL 1442256 (Fla. Dist. Ct. App. Apr. 10, 2013)

The purported personal representative of an Estate brought a wrongful death proceeding against Philip Morris. When the Estate realized that in fact a different individual had been appointed as personal representative, the Estate moved to amend its complaint and name the proper personal representative. The Court found that since the wrongful death action was instituted in good faith by a nominal plaintiff on behalf of the Estate, which was the real party in interest, the fact that the complaint was incorrectly brought in the name of a nominal plaintiff without capacity to sue or serve as personal representative did not nullify the original complaint and cause the amended complaint to become an entirely new cause of action. 


April 29, 2013

Long v. Willis, District Court of Appeal of Florida, 2d DCA, April 26, 2013 --- So.3d ---- 

Typically, when a decedent dies intestate, the nominee of a majority of the decedent’s beneficiaries will be entitled to preference in appointment as personal representative. However, a court can appoint someone else if that person is an unsuitable candidate. Unsuitableness is defined as an “adverse interest of some kind, or hostility to those immediately interested in the estate, whether as creditors or distributees, or even of an interest adverse to the estate itself.” Here, the court felt that an attorney who had aligned himself with three of the decedent’s five children in an earlier wrongful death proceeding was not qualified to serve as personal representative due to his conflict of interest.


May 7, 2013

Sugar v. Guardianship of Stern, 109 So.3d 809 (Fla. 3d DCA 2013)

The Court here found that the fact that there was no evidence that a family did not intend a settlement agreement to exclude certain language and that such language was only left out due to a scrivener’s error or inadvertence was sufficient to support judicial reformation of a settlement agreement among the family members of a ward and the guardian to include the missing language.


June 3, 2013

Zlatkiss v. All America Team Concepts, LLC, ---- So.3d. ---- (Fla. 3d DCA 2013)

A creditor seeking access to assets held in a spendthrift trust sought a declaration that F.S. 736.0501-.0507 (recognizing spendthrift trusts) violates article 1, section 21 of the Florida Constitution by preventing access to the courts. Because F.S. 736.0501-.0507 codified the common law right to creditor-protected spendthrift trusts, the Court held that they do not prevent access to the courts. The Court pointed out that the Plaintiffs were confusing their right to bring a legal action, with their means of collecting a judgment.


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