Rubin on Probate Litigation

Gossett v. Gossett , 182 So.3d 694 (Fla. 4th DCA 2015) In this decision on the equitable doctrine of "renunciation," the Court held that a trust beneficiary who challenged a trust document did not have to repay distributions made to him from the trust in order to challenge the trust document.   Prior to the initiation of the litigation, the decedent's wife and trustee of his trust sent the decedent's son distributions under the last version of the trust, and intended that he accept the distributions to prohibit him from challenging the validity of the last version of the trust.  In his lawsuit to set aside the last versions of the trust, he renounced any interest he may have had in those trusts, but alleged that Florida law did not require him to return the money he had already received because he was entitled to an equal or greater amount under the prior versions of the trust. The trial court held that the son was required to return all prior distributio

Keul v. Hodges Blvd. Presbyterian Church , 180 So.3d 1074 (Fla. 1st DCA 2015) This decision deals with whether a POD designation can be invalidated for undue influence , as well as the right of a probate court to require a party to return POD funds to an estate instead of entering a money judgment against the party for the amount of the funds.   The decedent's 2009 will provided that at her death, her entire estate would go to Hodges Boulevard Presbyterian Church.  A few days before she died, the decedent's neighbor/friend/caregiver/attorney in fact/health care surrogate claimed the decedent asked her to help her get a POD form to change her beneficiary designation to leave all of her assets to the neighbor and her family.   Following the decedent's death, the church objected to the inventory and sought to remove the neighbor as personal representative, arguing that the neighbor had failed to include the POD account in the inventory.  The trial court ultimately

Gordin v. Estate of Maisel , 179 So.3d 518 (Fla. 4th DCA 2015),  2015 WL 7566353 This decision centers around whether a probate court can appoint a curator without revoking the prior appointment of personal representatives.  The Court held that it was improper for the probate court to do so. The probate court admitted the decedent's will to probate, appointing his daughter and grandson as co-personal representatives of the estate.  The decedent's son filed a petition for revocation of the will, claiming that he was entitled to a forced share of the estate because the decedent lived in Puerto Rico when he died, that the decedent lacked testamentary capacity and was subject to undue influence when he executed the will, and that he had three previous wills.  The son also filed a petition for administration seeking to admit one of those previous wills to probate, and a petition to remove the personal representatives and appoint a curator. Without hearing evidence, the

Mathis v. Estate of Mathis , --- So.2d --- (Fla. 3d DCA 2015), No. 3D14-2332 This case deals with the ability of a beneficiary to seek further administration of an estate pursuant to Florida Probate Rule 5.460.  The decedent executed a last will leaving her homestead property to her daughter.  The will also provided that if the property was sold for whatever reason, the proceeds from the sale would be divided and distributed among her daughter, her son, and her other children and grandchildren. For ten years following the decedent's death, the son continued to live at the property. When a tax deed sale was imminent, the daughter filed a petition for administration and sought the appointment of a curator.  The son paid the outstanding property taxes to avoid the tax deed sale.  The curator filed a petition to determine homestead status and the trial court admitted the will to probate.  Once the trial court entered the order determining homestead status, the curator was disc

In Re Estate of Murphy , 184 So.3d 1221 (Fla. 2d DCA 2016) For anyone looking for a refresher on the doctrine of dependent relative revocation, this decision is a good read.  In this case, after 9 years of litigation, the Court ultimately determined that the probate court's failure to apply the doctrine of dependent relative revocation incorrectly resulted in the distribution of an estate worth $12 million to the decedent's intestate heirs rather than to the beneficiary of one of her prior wills. The decedent had executed a series of wills prior to her death.  Each of those wills, while slightly varied, left a bequest to the Northwestern University (Go Wildcats!!) medical school, to the decedent's second cousin, to her attorney, to her attorney's assistant, and to her accountant. The decedent's second cousin challenged the decedent's last will (which divided her residuary among the attorney, assistant and accountant, and not her), alleging undue influenc

Legal Aid Soc'y of Palm Beach Cnty., Inc. v. Guardianship of Jaffe , 178 So.3d 527 (Fla. 4th DCA 2015) This case involves a dispute under Florida's Public Guardianship law following a trial court's order allowing one guardian to withdraw and appointing Legal Aid Society of Palm Beach County, Inc. ("Legal Aid") in its place.   This situation was created by an apparently difficult ward who had at least six court-appointed guardians, the most recent being Ferd and Gladys Alpert Jewish Family & Children's Service of Palm Beach County, Inc. ("AJFCS").  Unable to control the ward, AJFCS sought to withdraw as guardian and suggested that the Statewide Public Guardian be appointed its place.  It did not put the Statewide Public Guardian or Legal Aid (the local public guardian) on notice, as required by Florida Probate Rule 5.560(c).  The probate court approved of AJFCS's resignation and appointed Legal Aid as the successor guardian.   Leg

Soriano v. Estate of Manes , 177 So.3d 677 (Fla. 3d DCA 2015), 2015 WL 5965203) This decision centered around whether a potential civil claimant arising out of a pending criminal prosecution was a "reasonably ascertainable creditor" entitled to personal service of the notice to creditors.  The Court ultimately held that the claimant was not a reasonably ascertainable creditor, because the personal representative has no actual knowledge of the claimant's civil claim, nor would a more diligent search have revealed the existence of the claim. Four months after the notice to creditors was published, the claimant filed her statement of claim alleging that she had a claim against the estate based upon an imminent private tort action against the decedent stemming from a criminal charge.  She argued that her statement of claim was timely filed because she was a reasonably ascertainable creditor, since she presented evidence showing that she was the victim of an alleged m

Delbrouck v. Eberling , 177 So.3d 66 (Fla. 4th DCA 2015), 2015 WL 5948724 In this case, one of the sons of the decedent claimed a constructive trust over certain properties titled in the name of the decedent.  The personal representative moved to compel the son to surrender to her the properties and to cease his business activities on the properties.  This decision dealt with whether the probate court was required to hear evidence before directing the son to turn over possession of the property to the personal representative. The personal representative relied on F.S. 733.607(1), which states that "The request by a personal representative for delivery of any property possessed by a beneficiary is conclusive evidence that the possession of the property by the personal representative is necessary for the purposes of administration, in any action against the beneficiary for possession of it."  The Court found that this statute does not mean a personal representative'

Malleiro v. Mori , 182 So.3d 5 (Fla. 3d DCA 2015) This case serves as a lesson in rarely used words buried in the Florida Probate Code.  The Court was asked to determine whether an unsigned notarial will executed in Argentina was a valid will under the Florida Probate Code.  The Court ultimately held that because the Argentine will was unsigned, even though it was a notarial will, it was a noncupative will prohibited by the Florida Probate Code. The testator executed a valid will in New York distributing her real and personal property located in the United States.  Four months later, she executed a second will in Argentina.  The Argentine will was not executed with the usual formalities of American wills.  Instead, the testator orally pronounced her testamentary wishes to a notary who transcribed them in the presence of three witnesses.  The testator orally approved the typewritten will in the presence of the witnesses, and the notary signed and stamped the will.  The testator

Zelman v. Zelman , 175 So.3d 871 (Fla. 4th DCA 2015), 2015 WL 5125439 Does a spouse have a due process right to be heard, call witnesses and present evidence at an incapacity hearing?  The Court in this decision held that because a spouse is an interested person, the spouse has standing to participate in the guardianship proceeding, and that participation must be meaningful.  Meaningful participation must be more than being allowed to be present and to speak- the spouse has the right to introduce evidence at a meaningful time and in a meaningful manner.  This is because the effect of a guardianship proceeding on a spouse is extensive.  The proceeding can impact the marriage, the marital home and the marital finances.  A spouse is also in a position to weigh in on what is in the ward's best interests.  Here, because the trial judge precluded the spouse from participating in the proceeding, the Court reversed the guardianship orders and remanded the case for new hearings. 

Barrier v. JFK Medical Center Ltd. Partnership , 169 So.3d 185 (Fla. 4th DCA 2015) This decision centered around when the knowledge of a guardian is imputed to the ward for purposes of bringing a medical malpractice suit.  Here, the mother of the ward was first appointed as ETG of her son.  After sixty days, her son was determined to be incompetent and she was appointed as plenary guardian of his person and property.  The issue on appeal was whether her appointment as ETG created a legal duty towards her son such that any knowledge of medical malpractice the guardian may have acquired could be imputed to her son and thus trigger the commencement of the statute of limitations.  The Court held that since the appointment of an ETG is an interim measure, which gave the mother only the authority to make medical decisions for her son and manage his medical and financial affairs until the appointment of a permanent guardian, she did not have a duty as ETG to file a malpractice suit on hi

Adelman v. Elfenbein , 174 So.3d 516 (Fla. 4th DCA 2015), 2015 WL 5026178 Following the dismissal of a petition for incapacity because the court found sufficient least restrictive alternatives to guardianship, the petitioner brought a subsequent "petition to reopen" the guardianship, alleging that the fiduciary appointed in the alleged incapacitated person's advance directive documents was not providing adequate care for that person. The trial court entertained the petition, conducted a trial, and ultimately appointed a professional guardian for the ward.  The Court reversed, holding that the trial court lacked jurisdiction to enter the order appointing the professional guardian.  It held that once a court makes an appropriate finding of least restrictive alternatives to guardianship and chooses not to appoint a guardian, the appropriate method for reviewing that finding is by filing a timely motion for rehearing pursuant to Fla. Prob. R. 5.020(d), or filing an a

Goldman v. Estate of Goldman , --- So.3d --- (Fla. 3d DCA 2015) This decision deals with an award of attorney's fees and costs against a party without a finding of bad faith by the trial court.  An attorney, in her capacity as Guardian Ad Litem, inadvertently disclosed confidential financial and medical information of the ward to the ward's nieces and nephews.  The trial court held a hearing regarding sanctions against the nieces and nephews, and found that the file had been sent inadvertently and not in bad faith, but still imposed sanctions against them for obtaining the confidential information in violation of the court's confidentiality order. The nephews and nieces appealed because the trial court did not make an express finding of bad faith conduct.  The Court agreed with the nephews and nieces that such a finding was necessary.  It cited the Moakley v. Smallwood decision, which held that the trial court has the inherent authority to impose fees against an att

Fiel v. Hoffman , 169 So.3d 1274 (Fla. 4th DCA 2015), 2015 WL 4549604 This case involved the effect of the Slayer Statute and undue influence on a murdered decedent's will.  The decedent was murdered by his wife, who also murdered the decedent's mother, to ensure that she and her family would receive the decedent's estate on his death.  The decedent's will provided that if the decedent's mother did not survive him, his estate would go to his wife.  If neither the mother or wife survived him, his estate would go to his wife's daughter by another marriage and her children. The trial court held that the wife was not entitled to participate in the estate based on F.S. 732.802 (the "Slayer Statute"), and that the statute required the court to treat her as having predeceased her husband, leaving her daughter and her daughter's children, and not the decedent's intestate heirs, as the beneficiaries of the estate. But the trial court also held

In re Estate of Maldonado , --- So.3d --- (Fla. 5th DCA 2015) In this case, the former spouse of a decedent appealed an order directing the personal representative to distribute the estate's assets and close the estate.  The decedent and his ex-wife divorced in 1993 in Puerto Rico, but the Puerto Rico order dissolving the marriage did not distribute the spouses' marital assets.  When the decedent died in 2005, his son sought to probate his will in Florida.  At the same time, the ex-wife filed suit in Puerto Rico seeking an award of marital assets.  She ultimately received a judgment for one-half of the marital assets.   In 2006, the ex-wife filed a motion to intervene in the probate proceedings and an affidavit explaining the Puerto Rico judgment and her claim against the estate.  In 2007, she again filed a renewed motion to intervene and statement of claim.  The decedent's son objected to the claim as untimely, and in 2010 the court entered an order striking the 2

Flegal v. Guardianship of Swistock , 169 So.3d 278 (Fla. 4th DCA 2015), 2015 WL 4269079 This case centered around the ownership of stock shares and due process within a guardianship proceeding.  The dispute arose over the ownership of stock shares which were initially purchased by a father and his daughters as joint tenants with right of survivorship. Prior to his incapacity, the father sued his daughters in Pennsylvania over ownership of these shares.  He claimed even though he had transferred the shares to his daughters as joint tenants with rights of survivorship, he did not actually intend to gift the stock to them.  As evidence of this intent, he established that he had paid for the stock, kept possession of the certificates, retained all dividends and paid income taxes on the dividends.  He asked the daughters to sign the stock back to him, but they refused, so he sought a declaration that he was the sole owner of the stock. While this litigation was pending, the dau

Brown v. Brown , 169 So.3d 286 (Fla. 4th DCA 2015), 2015 WL 4269921 This decision serves as a nice reminder about a court's jurisdiction over real property.  A circuit court in an estate proceeding cannot direct a personal representative to divide and distribute a decedent's real estate in another state, since the court lacks in rem  jurisdiction to order and partition the sale of that real property.  To properly partition out of state real property, a personal representative is required to open an ancillary action in that state.  F.S. 64.022.

Carroll v. Israelson , 169 So.3d 239 (Fla. 4th DCA 2015), 2015 WL 3999486 The focus of this case was the applicability of F.S. 732.507(2), dealing with the effect of divorce on a decedent's will which included a devise to his former spouse and a trust for her family. The decedent and his former spouse divorced one month before his death. Understandably, at the time of his death, he had not yet changed his estate plan to remove his former spouse from his will.  At his death, the will provided for the residuary of his estate to pass to his former spouse, and if she predeceased him, to a family trust created under her  revocable trust.  The former spouse's revocable trust gave her the right to receive income and principal from the trust and to revoke or modify the trust at any time.  Upon her death, a family trust would be created for the benefit of her niece and nephew.  At the time of their divorce, the decedent and his former spouse entered into a marital settlemen

Pierre v. Brown , 169 So.3d 262 (Fla. 3d DCA 2015), 2015 WL 4111330 In this guardianship fee dispute, the Court affirmed a harsh result for a successor guardian who incurred fees in cleaning up a mess created by the initial guardian. The initial guardian of the ward incurred over $200,000 in fees.  That prior guardian secured assets of the ward, repaired a residence the ward inherited from his mother, reduced the mother's funeral bill and recovered compensation paid to a disbarred attorney.  These actions resulted in a deposit of $150,000 into a trust for the ward, on top of the ward's $78.40/month disability income and $1,400/month rental income from the real property.  Virtually all of the wards assets were paid out as fees to the initial guardian. Once the successor guardian was appointed, he discovered that no tax returns had been filed for the ward since 2004, and the income tax obligations of the mother's estate and real estate taxes were never paid.  The

Saadeh v. Connors ,  166 So.3d 959  (Fla. 4th DCA 2015) In this portion of the Saadeh guardianship saga, the court was asked to determine whether an attorney representing a court-appointed guardian in a guardianship proceeding owes a duty to the ward under a third-party beneficiary theory.  The Court ultimately found that it did.  This case began with an emergency temporary guardianship proceeding, in which a court-appointed attorney was appointed to represent the alleged incapacitated person, a professional guardian was appointed, and that guardian had his own counsel.  As part of an "agreed" order to "settle" the guardianship, the court entered an ordered agreeing that the alleged incapacitated person would execute a trust instead of a plenary guardianship.  The agreed order did not settle the matter, unfortunately, and the litigation continued. Eventually, the alleged incapacitated person was found competent and brought suit against multiple players in th

Harrell v. Badger , 171 So.3d 764 (Fla. 5th DCA 2015), 2015 WL 3631639 This case highlights the lack of understanding many trust and estate practitioners have about what "decanting" actually means.  Despite the clear language of F.S. 736.04117, it seems  many are still confused about when decanting is appropriate, and about how to follow the simple rules provided in the statute. The decedent here left the remainder of her estate in trust for her son.  The trust required the trustee to distribute the net income to the son, and gave the trustee full discretion to make additional payments to or for the benefit of that son.  If assets remained at the son's death, the assets were to be distributed to the decedent's other two children. Following the decedent's death and a dispute among the children, the son's neighbor became the trustee of the trust.  He filed a petition to employ his wife as the realtor to sell the decedent's home- the sole asset o

Simmons v. Estate of Baranowitz , --- So.3d --- (Fla. 4th DCA 2015), 2015 WL 2089071 This case dealt with whether a court could order disgorgement of excessive fees from a personal representative's counsel individually, where the personal representative's counsel was not served by with formal notice.  The Court relied on its holding in Kozinski v. Stabenow (summary here ), where the court found that "the remedy of 'surcharge'...constituted an adversary proceeding requiring service by formal notice under the Florida Probate Rules in order for the probate court to have personal jurisdiction over her individually...." F.S. 733.6175 gives the court authority to review compensation paid to a personal representative's employee, and if it finds that excessive compensation was paid, to order that employee to make appropriate refunds.  But there is a distinction between the court's authority to act and the way the court notifies the employee that a

Megiel-Rollo v. Megiel , 162 So.3d 1088 (Fla. 2d DCA 2015) This case involved a dispute about whether a trust was subject to reformation under F.S. 736.0415.  The decedent died leaving behind three children.  Her will left the residue of her estate in equal shares to all three of her children.  Several years after executing the will, the decedent executed a revocable trust, and she transferred her home into that trust.  The trust provided that it was to terminate upon the death of the decedent, and the property should be distributed to the beneficiaries in accordance with their respective interests as set forth on an attached Schedule of Beneficiaries.  The only problem: the draftsman of the trust forgot to prepare the Schedule of Beneficiaries. One of the daughters filed a complaint against her siblings, arguing that the trust was void for lack of beneficiaries, and, therefore, the residence passed to the three siblings pursuant to the terms of the will. Another daughter coun

Pitcher v. Waldo , --- So.3d ---, 2015 WL 1334341 This case involved a dispute between the parents of a deceased child over a jury award to the survivors in a wrongful death suit.  The jury awarded the mother $1,000,000 and the father $100,000, and the father claimed that since the mother and the father had an agreement to split the award 60/40, he was entitled to relief pursuant to F.S. 733.815, which allows interested persons to agree to alter their shares of property from an estate .  The Court held that since the survivor's claims are for the survivor's sole benefit, they do not become part of the estate, and thus the probate court had no jurisdiction to adjudicate the dispute.

Martinez v. Guardianship of Smith , --- So.3d --- (Fla. 4th DCA 2015), 2015 WL 1238445 In this case, a wife appealed the order appointing a professional guardian for her husband, since the trial court failed to apply the statutory presumption of F.S. 744.3045 where her husband had given her power of attorney and appointed her as his preneed guardian and health care surrogate.  The Court held that because the trial court failed to make a specific finding that the appointment of the wife was contrary to the best interests of the ward, the order appointing professional guardian was reversed. In its decision, the Court detailed the various ways the professional guardian and the wife were at odds about the ward's care.  Particularly, their disputes centered around the ward's residence and the fact that he had been moved from institution to institution.  The Court ultimately held that the wife's conflicts with the institutions and her difficultly communicating with the s

Ciungu v. Bulea , 162 So.3d 290 (Fla. 1st DCA 2015), 40 Fla.L.Weekly D.689c The decedent's here, a husband and wife, died intestate owning property in both Florida and Romania. One of their children filed Petitions for Administration in both estates and was appointed as personal representative.  He filed probate inventories and served them on his sister and no objections were filed. The trial court entered an order requiring the personal representative to hold his sister's share of the Estate assets in a restricted account until the sister had fulfilled her obligation to ensure legal title to the Romanian properties was properly vested in the persons entitled to receive those properties under Romanian law. The sister filed a motion to vacate that order, asserting that the probate court lacked subject matter jurisdiction over the Romanian property.  At the hearing on the Motion to Vacate, the trial court heard several other issues and ultimately made the following decisi

Blinn v. Carmen , --- So.2d --- (Fla. 4th DCA 2015), 40 Fla. L. Weekly, D678b In this decision, the Court affirmed a trial court's decision invalidating a will based on undue influence because substantial competent evidence supported the finding.  The facts of this case are familiar to anyone who has practiced in this area.  In 2007, the decedent married his fourth wife at age 82, at a time when his mental health had already begun to deteriorate and he already suffered from progressive dementia.  He ultimately changed his estate plan to leave everything to the wife. While I always enjoy seeing an undue influence decision, this one falls squarely in line with the undue influence cases we are familiar with.  The wife's behavior was egregious-- not only did she successfully persuade her husband to abandon his prior estate plan (which left everything to his daughter) and instead leave everything to her, but she alienated him from his family, she aggressively convinced him th

Faulkner v. Woodruff , 159 So.3d 319 (Fla. 2d DCA 2015), 2015 WL 968723 In this fee dispute, the Court held that Section 733.6175, which provides the circuit court with the authority to determine the reasonableness of compensation paid to personal representative or any person employed by the personal representative, does not require the personal representative to interplead himself as a respondent in an action to review fees.  The personal representative, like a beneficiary of an estate, has the right to have the court review the fees, and the party seeking to be paid has the burden of proof to establish that their fees were reasonable.

Steiner and Steiner v. Guardianships of Steiner , --- So.2d --- (Fla. 2d DCA 2015), 40 Fla. L. Weekly D559a The Second District has now weighed in with the First, Fourth and Fifth Districts about the "statutory gap" in the Guardianship Code dealing with the payment of the court-appointed attorney's fees in situations where a petition to determine guardianship and incapacity is brought in good faith, but incapacity is not found and guardianship is not established.  As the Fourth District held in the Klatthaar  decision, F.S. 744.331 fails to address these situations leaving court-appointed attorneys with a right without a remedy.  The Court urged the legislature to remedy this situation.

Snider v. Metcalfe , 157 So.3d 422 (Fla. 4th DCA 2015), 2015 WL 444497 While part of a trust dispute, this case involved the procedural question of when one must raise a defense of lack of personal jurisdiction in a proceeding.  Here, the Court held that even though the trustee of the trust at issue did not assert her defense of lack of personal jurisdiction in her original motion to dismiss a beneficiary's complaint for breach of trust, because she raised it in a subsequent amended motion to dismiss, she did not waive the defense.  Interestingly, the Court held that neither filing a notice of intent to use trust funds to pay the trustee's attorney's fees nor the filing of two responses to discovery requests amounted to "submission to the court's jurisdiction" or requests for affirmative relief sufficient to waive the defense of lack of personal jurisdiction  The Court distinguished these facts from situations where the party asserting the defense obtaine

Whiting v. Whiting , 160 So.3d 921 (Fla. 3d DCA 2015) In this guardianship, the guardianship court entered into an order appointing a guardian for an alleged incapacitated person based upon a Stipulation for Limited Guardianship entered into by the parties.  That Order restricted the ward's ability to manage her personal financial affairs beyond a $1,500 limit for any single transaction and also limited her ability to give gifts to $1,500 per person per year.  Following the entry of the Order, the Ward amended her estate plan to leave all of her assets to one of her sons, leaving out her other two sons who had previously been included as equal beneficiaries.   Following the Ward's death, one of the excluded sons sought to set aside the trust amendment based upon the plain language of the Order.  The trial court concluded that the Order was clear and unambiguous, refused to consider parol evidence, and construed the provisions limiting the Ward's ability to make gif