Thursday, October 31, 2013

Perelman v. Perelman

Perelman v. Perelman, 2013 WL 5807358

It is not uncommon here in South Florida for cases to arise that center around disputes about where the decedent was domiciled at their death, given how many retirees move here at the end of their lives.  This case centered around a will contest between a son, arguing that his mother was a domicile of Pennsylvania, and a husband, arguing that his wife was a domicile of Florida.  

The issue on appeal centered around whether the Florida trial court should have stayed the Florida proceeding under the principle of priority.  The "principle of priority" is the idea that the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with this case.  It is not a mandatory principle, however absent extraordinary circumstances, it is an abuse of discretion to fail to respect the principle of priority.

The Court explained that the exercise of jurisdiction by the foreign court will trigger priority.  It emphasized the idea that, "The ball is rolling, so to speak, and will not be stopped until the court issues an order or the plaintiff dismisses the lawsuit."  In re Guardianship of Morrison, 972 So.2d 905, 908 (Fla. 2d DCA 2007).  So when does a foreign court exercise its jurisdiction?  Within the state, the Florida courts have held that a court exercises its jurisdiction when service is perfected.  But when dealing with a foreign court, the Court held that it must look at the law of the foreign jurisdiction to determine when the court exercised its jurisdiction.

Here, the Court held that Pennsylvania first exercised jurisdiction when it issued a notice to the husband's counsel stating that the wife's Pennsylvania will would be probated unless he filed a formal caveat.  Since the "ball was rolling" in Pennsylvania at that point, which was before the husband filed his Florida petition, Pennsylvania exercised its jurisdiction first.  

As mentioned above, since the principle of priority is not mandatory, the Court then had to consider whether the trial court abused its discretion by failing to respect the Pennsylvania proceeding.  Since the trial court did not make a finding of extraordinary circumstances that would justify refusing to apply the principle of priority, nor that the Pennsylvania proceeding would cause undue delay, the decision was remanded for the trial court to issue a stay pending the resolution of the Pennsylvania probate proceeding.

Wednesday, October 30, 2013

Golden v. Jones

Golden v. Jones, 38 Fla. L. Weekly D2259a

The debate about the timeliness of a creditor's claim filed by a known or reasonably ascertainable creditor after the three-month period following publication of notice to creditors continues!

As you may know, the First and Second Districts in the Lubee and Morgenthau decisions have held that even a reasonably ascertainable creditor who was not served with a notice to creditors is required to file a claim within the publication period of three months.  Under this line of thought, whether a creditor was reasonably ascertainable is immaterial.

On the other hand, the Fourth District, in Puzzo, has held that any claims of known or reasonably ascertainable creditors, though filed after the three-month period following publication of notice of administration, should not be stricken as untimely if filed prior to the earlier of 30 days after service of notice of administration or two years after the decedent's death.  As a result, the Court in this case remanded to determine whether a creditor was a known or reasonably ascertainable creditor.  It held that if it was a known or reasonably ascertainable creditor, then the creditor's claim, though filed after the three month period, should not have been stricken as untimely if filed prior to the earlier of 30 days after service of notice of administration or 2 years after the decedent's death.


Martinez v. Cramer

Martinez v. Cramer, 121 So.3d 580 (Fla. 3d DCA 2013)

NOTE: THIS DECISION SUPERSEDES THE DECISION DISCUSSED HERE

The Court withdrew its opinion dated June 19, 2013, and released this new opinion which reversed and remanded the appointment of an emergency temporary guardian since counsel was not appointed for the Ward until after the appointment of the emergency temporary guardian.  In its earlier opinion, the Court found that since the appointment of the emergency temporary guardian remained in effect after counsel was appointed for the Ward, the failure to appoint counsel did not rise to the level of reversible error.

Monday, October 28, 2013

Congrats Chuck Rubin!

A huge congratulations is in order for Chuck Rubin for being elected as an ACTEC (American College of Trust and Estate Counsel) Fellow!  

Friday, October 18, 2013

Drelich v. Guardianship of Drelich

Drelich v. Guardianship of Drelich, 2013 WL 5629770

The intersection of guardianship and family law often presents a new spin on our typical guardianship fact patterns.  Here, husband and wife were married with both pre and post nuptial agreements.  Husband later filed for dissolution of the marriage.  The wife filed a motion to stay or abate the divorce proceedings, and alleged that her husband was incapacitated, that she anticipated filing a guardianship proceeding and that she was asking for fees, since her husband (or really, his agents), filed the divorce proceeding in bad faith.

The wife's guardianship pleadings did not mention the pending divorce.  In his response, the husband denied the allegations in her petition and moved for fees and costs based on his wife's bad faith in filing the guardianship proceeding.  He admitted that he was depressed, but said he was completely capable of making his own decisions.

The examining committee unanimously found the husband to be competent, so the wife dismissed her petition for guardianship.  When the husband asked for his fees and costs in the guardianship proceeding, the guardianship court denied.

The appellate court noted that the wife's petition was filled with omissions of material facts and false allegations, and was filed for the purpose of delaying the divorce proceedings.  It held pursuant to F.S. 744.331(7)(a), that the husband was entitled to a hearing on whether the wife's guardianship petition was filed in bad faith, in order to determine whether he was entitled to his fees and costs in the guardianship proceeding.

Thursday, October 10, 2013

Robert Sitkoff on Implementing Freedom of Disposition

Despite being the daughter of a trust and estates lawyer (hi Dad!), it took Robert Sitkoff's course at Harvard Law School to really inspire me to pursue a career in this field.   This morning, Professor Gerry Beyer of Texas Tech University School of Law posted the following link to a new article by Professor Sitkoff, which I highly recommend:



Wednesday, October 2, 2013

Representing Estate and Trust Fiduciaries

This morning, the litigation department from our firm presented on Representing Estate and Trust Fiduciaries at SunTrust's roundtable seminar.  For those who are interested, here is a link to our materials.  

https://docs.google.com/file/d/0BxBKtQfqgY-0NDN3ZGhpQVpZSFU/edit?usp=sharing

If you have any questions or would be interested in our litigation department putting on a similar seminar, please let me know!