Saturday, November 30, 2013

Cody v. Cody

Cody v.  Cody, 2013 WL 6171299

In this case, the Appellate Court was forced to overrule a strange and confusing trial court decision regarding the distribution of property from an estate.  In 2007, a husband and wife executed wills.  The wife died shortly thereafter.  The husband's will specifically named his wife's three sons (his step-sons) as his children, and named one of those sons as his PR. 

The will also made a devise of real property as follows:

"(b) I devise the house and 12.5 acres located at 2800 Myree Lane, Pace, FL 32571, to my husband, Earlier T. Martin, Jr.  Should Earler T. Martin predecease me, then I devise the house and acreage in my son, Buford Cody, to divide between my heirs, as he sees fit and proper."

The Court noted that it was clear that this devise included a typographical error copied over from the wife's will, and should have said the house and property were distributable to the wife if she survived him.  The will left the balance of his estate to the three sons equally.  

Buford, the son named as personal representative, filed a Petition for Administration. Shortly thereafter, his brothers objected on the basis that Buford was distributing assets before being appointed PR and before filing an accounting of the assets.  They also filed a petition to construe the will and determine beneficiaries, since they believed their mother's estate had not yet been wound up, and that the real property at issue had never passed to the husband and rather should have been distributed pursuant to their mother's will.

The probate court, after a hearing on the petition to construe the will (of which there apparently was no transcript) determined that the wife's intent was for the property to pass partly to a grandchild, with the balance divided among the three sons, and later entered an order determining the boundaries of the real property, making the probate court's order a final appealable order.

The Court reversed the probate court's decision for several reasons.  First, the Court held the order was premature, since Buford had not yet been appointed as personal representative, nor had the husband's will been admitted to probate as required by F.S. 733.213 before a will can be construed.  Second, the Court held it was inappropriate for the probate court to consider the wife's intent when construing the husband's will.  The granddaughter was not even mentioned in the husband's will, so it was unclear why the probate court would have included her as a devisee.  Finally, the probate court failed to make a finding that F.S. 732.105 should even apply- there was no explanation as to why the probate court thought the will was unclear or there was doubt about the distribution of the assets.

Ultimately, the Court held that the real property was to be distributed pursuant to the testator's will and in accordance with the testator's intent.  The will did not say that the property was to be divided among the three sons.  Rather, it left the property to Buford, and directed Buford, as personal representative, to divide it as he saw "fit," which could mean no division at all.  There was no legal basis for the probate court to override the testator's clear direction and devise the property to whomever the court saw fit. 

Monday, November 25, 2013

Cessac v. Stevens

Cessac v. Stevens, 2013 WL 6097315 (Fla. 1st DCA 1013)

We don't often see cases regarding the exercise of a power of appointment but the First DCA recently addressed the validity of such an exercise in this case.  The will at issue included a provision that stated:

"Included in my estate assets are the STANTON P. KETTLER TRUST, FBO, SALLY CHRISTIANSEN, under will dated July 30, 1970, currently held at the Morgan Stanley Trust offices in Scottsdale, Arizona, and two (2) currently being held at Northern Trust of Florida in Miami, Florida."

Other than the quoted language, the will did not mention the trusts or mention any powers of appointment. The trusts described contained powers of appointment which authorized the decedent to direct who would receive the trusts assets upon her death.  The trusts required her to make specific reference to the power in order to exercise it.     

The trial court entered a judgment declaring the trusts' assets were not the property of the decedent's estate, since the decedent's will did not include a valid exercise of the power of appointment provided in the trusts because it failed to reference the power of appointment in the trusts as required by the grantor.

Before this case was decided, there was only one Florida case dealing with a similar power of appointment- Talcott v. Talcott, 453 So.2d 951 (Fla. 3d DCA 1982) (Thanks for the fix Jeff!).  In Talcott, the court held that the holder of a power of appointment did not properly exercise his power in accordance with the requirements of the trust and that evidence of the power holder's intent was immaterial in light of his failure to comply with the specific reference requirements of the trust.

Here, the will went a step farther than the will in Talcott, since it at least mentioned the trusts, but the Court held that it still was not enough.  The Court said that the question of whether a donee has validly exercised a power of appointment does not depend on the intent of the donee, but on whether the power was exercised in the manner prescribed by the donor.

Appellants urged the Court to adopt an equitable construction standard and construe the "specific reference" requirements in the trusts to demand only reasonable substantive compliance.  In doing so, they cited to several out-of-state decisions that required only reasonable compliance with the terms of the power of appointment.  The Court held these cases to be distinguishable, since here, the decedent's will did not include even a general reference to the powers of appointment held by the decedent, just a reference to the trusts.

Appellants also argued that the terms of the will met the requirements of F.S. 732.607.  The Court agreed with the Talcott Court, and explained that if the trust contains no specific limitation on the manner of executing the power, then other evidence that the power had been executed may be considered to determine intent.

Thursday, November 14, 2013

West v. West

West v. West., 2013 WL 5989234 (Fla. 4th DCA 2013)

This case involved a family dispute among two sons of the decedent- one was named personal representative of the father's estate, and filed two claims in his father's estate, and the other objected to the claims.  To resolve the dispute, the personal representative/son filed a "Petition to Enforce a Claim" in the probate deivision.  The other son moved to dismiss or strike, since the Petition did not constitute an "independent action" as required by F.S. 733.705.  The trial court dismissed the claims.

The Appellate Court noted that in 2008, the chief judge of the Fifteenth Circuit in Administrative Order 6.102-9/08 declared that "independent actions" must be filed in the civil division.  Here, since the personal representative filed his claims in the wrong division, and he was barred from re-filing because the thirty day statutory period had expired, his only option was to either have his claim transferred or get an extension of time, and the trial court denied him both options.

The Court held that the trial court should not have dismissed the case just because it was filed in the wrong division.  It held that it should have transferred it to the proper division, particularly because even though the personal representative did not file a motion to transfer, he did argue that transfer was the correct remedy.  Even if he had not requested a transfer, the court indicates that a transfer rather than a dismissal would have been proper.