Rubin on Probate Litigation

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 wife would h…

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

Thanks for the shoutout, Juan Antunez!

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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 health or safet…

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 statute...as 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 attorney's fees must m…

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 representative the…

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 final order, si…

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 than through hi…