Rubin on Probate Litigation

Kosheniva v.  Buvens , --- So.3d --- (Fla. 1st DCA 2014), 2014 WL 304889 At issue in this case was the proper standard for reviewing (and possibly overriding) a ward's designation of a pre-need guardian.  Here, the ward named her husband as her preneed guardian at a time when her capacity to do so was questionable.  The trial court initially named her sibligns as her emergency temporary guardians, and ultimately appointed them as her plenary co-guardians instead of her husband.  The Appellate Court had two distinct problems with the trial court's analysis: (1) Validity of Declaration of Preneed Guardian After hearing evidence from her lawyer, who said the ward was competent when she executed the Designation naming her husband as her preneed guardian, and conflicting evidence from doctors regarding her ability to execute such a document, the court held that it "seriously questioned" her ability to know what she was doing when she executed the Designati

Mack v. Polsby , --- So.3d --- (Fla. 3d DCA 2014), 2014 WL 54895 The dispute in this case centered around a revocable trust created by an emergency temporary guardian.  The ward, and eventual decedent, had four children.  After he suffered from a stroke and went into a coma, his daughter filed a petition seeking to be appointed as her father's emergency temporary guardian.  The court granted her petition, and also granted a later petition allowing her to create and fund a revocable trust.  Following the court's order allowing her to create the trust, the daughter funded the trust with her father's property in Michigan. When the father ultimately passed away, one of his sons was appointed personal representative of his estate in Michigan.  The son then filed a Complaint against his sister, which sought a declaration that the trust was invalid and that the sister breached her fiduciary duty as trustee and removal of the sister as trustee.  By the time his Complaint w

Gren v. Gren , --- So.3d ---, 2014 WL 51640 (Fla. 4th DCA 2014) This case involved a dispute between the ex-wife of a decedent and his surviving spouse who was serving as his Successor Trustee.  Since there was a question regarding the construction of the Trust, the ex-wife filed a Petition for Construction of Trust Instrument to seek clarity from the court.  Since the Trust had a provision requiring arbitration, the trial court granted a Motion filed by the Successor Trustee to compel arbitration. The ex-wife failed to take any action for six months following the court order compelling arbitration, so the Successor Trustee sought to dismiss her lawsuit, claiming that the ex-wife's failure to arbitrate had prevented her from filing tax returns and distributing assets.  The ex-wife responded that any question of delay in her giving notice of arbitration was a question of fact to be determined by the arbitrator, not the trial court.   The Appellate Court agreed with the

JP Morgan Chase Bank, N.A. v. Estate of Neu , --- So.3d ---, 2014 WL 51637 (Fla. 4th DCA 2013) The principle of priority is the idea that where two courts have concurrent jurisdiction over a cause of action, the first court to exercise jurisdiction has the exclusive right to hear all issues or questions arising in the case.  This often results in a "race to the courthouse" for litigants who may have a preference as to which court they want their action heard by.  Here, the Broward court entered an order directing the disbursement of sales proceeds from the sale of a home, while a declaratory action was already pending in Palm Beach County which would resolve the issues.  The Court held that the Broward court should have stayed their action until the resolution of the Palm Beach action.   

In re Guardianship of Klatthaar , --- So.3d --- (Fla. 2d DCA 2014), 2014 WL 51382 In guardianship proceedings, until incapacity is determined and a guardian is appointed, fees of the various attorneys involved and the members of the examining committee may rack up without any method for payment.  Once a guardianship is established, the law is clear about payment of the fees.  But if a guardianship is never established, as the Court correctly points out in this decision, there is a hole in our statute that leaves attorneys and examining committee members with no ability to be paid for their work. In this case, the alleged incapacitated person died before a final determination of incapacity was rendered.  A petition was filed and an ordered was entered for the fees and costs of the attorney for the petitioner, the attorney for the alleged incapacitated person and the members of the examining committee.  The personal representative of the decedent's estate appealed that deter