Thursday, June 27, 2013

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 the husband was serving under was found to have possibly been deficient.  Florida Statutes § 765.202(1) provides that if the principal is unable to sign her designation of health care surrogate herself, then another person may sign the principal's name in the presence of two witnesses.  The Appellate Court noted that the husband testified that he signed his wife's name, but that he did not do so in front of witnesses. Since his testimony also seemed to indicate that his wife did not have cognitive capacity to make decisions when the health care surrogate form was executed, there were questions as to the validity of his designation.  The case was thus remanded for an evidentiary hearing on the validity of the designation.

Tuesday, June 25, 2013


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!

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Monday, June 24, 2013

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 insufficient for a finding of undue influence or breach of fiduciary duties.  In its discussion regarding undue influence, the Court explained that a close relationship between a parent and child will not create an inference of undue influence.  The Court also gave weight to the fact that the daughter was not present when her mother changed the beneficiary designations, there was no evidence that she gave her mother instructions regarding the account changes, and that she alerted the bank employees prior to her mother's meetings with them.  Unlike the lower court, the Court did not give much weight to a "to do list" create by the mother and her daughter as evidence of undue influence.

The Appellate Court focused on the testimony of the financial officers regarding the mother's knowledge and awareness as evidence that showed that the mother had mental capacity.  The Court also found that since the mother had made gifts to some of her other children during her life, even though there was evidence that she clearly wanted them to benefit equally from her estate at her death, that did not amount to evidence that she wanted each heir to receive equal cash distributions or that all of her property would pass via probate and non via right of survivorship.

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:

Thursday, June 20, 2013

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 "living issue,” or in the alternative, judicial modification of the Trust, which would exclude the adoptee from taking by conforming the Trust to conform with the Settlor's intent to keep Family Trust A's assets within the family bloodlines.  The trial court granted the sibling's motion for summary judgment and modified the trust to exclude the adult adoptee because including her would "defeat or substantially impair the accomplishment of a material purpose" of the Trust.

The Appeals Court dismissed the sibling's public policy argument against an adult adoptee on appeal, citing the fact that the draftsmen of Florida's Probate Code did not adopt the Uniform Probate Code provisions excluding adult adoptees in certain situations.

The Appellate Court then considered whether the trial court should have modified the irrevocable trust.  Under F.S. 736.04113, a court can modify the terms of an irrevocable trust where, "[b]ecause of circumstances not anticipated by the settlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment of a material purpose of the trust."  The court pointed to 736.05113(3)(A), which provides that the court should consider, "the terms and purposes of the trust, the facts and circumstances surrounding the creation of the trust, and extrinsic evidence relevant to the proposed modification," and held that since the Trust terms are unambiguous about "adopted" persons being treated as beneficiaries under the Trust,  any question of the Settlor's intent to exclude adult adoptions is a factual issue that was inappropriate for resolution on summary judgment.  The Court reversed the Trial Court's judgment and remanded to resolve this, among other, issues.

Martinez v. Cramer

Martinez v. Cramer, 4th DCA, Case No. 4D13-405, June 19, 2013


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 represent the alleged incapacitated person during any such summary proceedings...” (emphasis added).  Appellee argued that the temporary injunction hearing was not a “summary proceeding” for purposes of emergency temporary guardianship.  The Court held that the trial court’s decision to appoint an emergency temporary guardian after hearing the evidence presented at the hearing on the temporary injunction converted the hearing into a “summary proceeding” for purposes of section 744.3031(1).

38 Fla. L. Weekly D1344c

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.