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.  The court held that the verified statement provided a reasonable factual basis for it to believe that the estate planning documents were invalid and not an available less restrictive alternative to guardianship.

The mother felt that the trial court violated her right to due process by in effect invalidating her estate plan based on an affidavit.  The Court held that the verified statement complied with the plain language of F.S. 744.331(6)(f), and explained that it was not invalidating the estate plan, but rather simply finding that the estate plan was not a less restrictive alternative to guardianship.

Comments

Post a Comment

Popular posts from this blog

Goodstein v. Goodstein

Goodstein v. Goodstein ,  263 So.3d 78 (Fla. 4th DCA 2019) I started this blog in 2013, and this is the first time I have the opportunity to write about a case that I am actually involved in. This case involves a long-running dispute between the father of the decedent, the personal representative of the estate, and the decedent's children, the beneficiaries of the estate (the personal representative's grandchildren). The personal representative appealed a decision by the trial court which required all estate assets to be placed in a restricted depository. Restricted depositories have been common-place in Miami-Dade County for quite some time. Recently, South Palm Beach County has instituted as similar requirement. As a matter of course, all estates opened since the introduction of this policy have been required to place all assets in a restricted depository and assets may only be withdrawn with a court order. Here, the beneficiaries had concerns about their actions a...
Read more

Malleiro v. Mori, Mori and Corallo

Malleiro v. Mori , 182 So.3d 5 (Fla. 3d DCA 2015) This case serves as a lesson in rarely used words buried in the Florida Probate Code.  The Court was asked to determine whether an unsigned notarial will executed in Argentina was a valid will under the Florida Probate Code.  The Court ultimately held that because the Argentine will was unsigned, even though it was a notarial will, it was a noncupative will prohibited by the Florida Probate Code. The testator executed a valid will in New York distributing her real and personal property located in the United States.  Four months later, she executed a second will in Argentina.  The Argentine will was not executed with the usual formalities of American wills.  Instead, the testator orally pronounced her testamentary wishes to a notary who transcribed them in the presence of three witnesses.  The testator orally approved the typewritten will in the presence of the witnesses, and the notary signed and st...
Read more

Cantero v. Estate of Caswell

Cantero v. Estate of Caswell , --- So.3d --- (Fla. 3d DCA 2019) This decision involves an appeal of a trial court's order striking a claim as untimely. The claimant argued that his claim was timely because he was a reasonably ascertainable creditor who was not served with notice. The Court disagreed. The claimant argued that the estate should have known about his claim based on several conversations he had with the personal representative and the personal representative's attorneys. He was claiming an ownership interest in the decedent's real property because he paid for the property and paid the mortgage premiums over 20 years prior to the decedent's death for a 5 year period of time while he has in a relationship with the decedent. In his calls to the personal representative, the claimant apparently only mentioned that he had left some car parts in the garage and never said anything about an ownership interest in the property. He argued that he inquired, ...
Read more