Thursday, September 26, 2013

Levya v. Daniels

Levya v. Daniels, 2013 WL 5313600 (11th Cir. 2013)

It is not uncommon for probate and trust cases to involve beneficiaries in one or more jurisdictions and a fiduciary in another.  Here, the personal representative was a citizen of Texas but was acting as personal representative of a Florida estate.  Two of the beneficiaries sued the personal representative, one from Florida and the other from Colorado.  The beneficiaries argued that the district court had diversity jurisdiction, since they were citizens of Florida and Colorado, and the personal representative was a citizen of Texas.  

The Court held that since the personal representative was being sued in his fiduciary capacity rather than his personal capacity, he was deemed a Florida citizen for purposes of the lawsuit. Thus, the district court properly dismissed the complaint for lack of diversity jurisdiction. 

Thursday, September 19, 2013

Lee v. Estate of Payne

Lee v. Estate of Payne, 148 So.3d 776, 2013 WL 5225200 (Fla. 2d DCA 2013)

This case involved a decedent's fiance's attempt to admit the decedent's Colorado holographic will in Florida (where the decedent owned three homes).  The holographic will left the fiance one of the houses, plus $40,000 from the sale of the other two houses.  He left his father the remainder of the sale proceedings.

The decedent's sister and Colorado personal representative filed a Petition for Administration in Florida, and alleged that the holographic will was not valid under F.S. 732.502(2), since it was not executed in compliance with F.S. 732.502(1).  She listed the decedent's minor daughter as the only beneficiary of the estate.

The fiance sought to have the Florida court admit the holographic will to probate to give full faith and credit to the Colorado court.  

F.S. 734.104 say that a foreign will that devises Florida real property and is admitted to probate in another state can be admitted in Florida only if that will was executed as required by chapter 732.  Since the Colorado will was not witnessed, it did not comply with Florida law and thus could not be admitted in Florida.

The fiance argued that F.S. 732.502(2) unconstitutionally restrains the testator's right to devise property.  However, in 1966, the Florida Supreme Court decided a similar case and in that case affirmed a trial court's order denying the probate of a holographic will.  Since that case has not yet been overruled, the Court held that it was required to hold that the holographic will could not be admitted to probate in Florida.  It then certified the following question to the Supreme Court: "Do sections 732.502(2) and 734.104(a) violate Article I, Section 2 of the Florida Constitution by categorically defeating the intent of the testator of a handwritten holographic will without a rational relation to the fraud it seeks to cure?"

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.

Tuesday, September 17, 2013

In re Brinkman

In re Brinkman, FLWSUPP 2010BRIN

The decedent died in 2007, leaving no will, and no assets other than a potential medical malpractice/wrongful death suit.  The surviving spouse, along with the decedent's two adult daughters, were his only heirs.  The surviving spouse was appointed personal representative of the estate, and she hired a law firm on a contingency basis to represent the estate in the wrongful death litigation.  She also hired a different law firm to represent her in the probate estate.

The law firm representing the personal representative in the probate estate used a fee agreement which provided that they would be paid 3% of the estate.  It also provided that in cases where the personal representative pursues a claim or files a lawsuit, the attorneys fees would be calculated based on the net recovery of that lawsuit. 

The wrongful death suit settled for $750,000, with a net recovery of approximately $434,000.  The law firm handling the probate estate claimed it was entitled to 3% of that recovery.  The Court held that F.S. 733.6171(2) does not allow an attorney representing the personal representative with respect to the administration of the estate to base its fees on a recovery outside of the estate's statutory right to recovery in the wrongful death suit pursuant to F.S. 768.21(6), since the estate was also represented by attorneys who were litigating that claim. The court was not persuaded by the fact that at all times the law firm handling the estate administration knew about the wrongful death proceeding or that an estate proceeding was required for that wrongful death proceeding to occur.