Flegal v. Guardianship of Swistock

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 daughters filed a petition to determine their father's capacity and appoint them as plenary guardians.  The father moved to dismiss, arguing that they had only brought the guardianship to avoid the outcome of the Pennsylvania action about the ownership of the stock.  The examining committee concluded he was not incapacitated, so the daughters dismissed their petition.

About a year later, the father suffered a stroke.  A daughter not involved in the stock ownership litigation filed for guardianship and sought to be appointed as emergency temporary guardian (ETG).  She listed the stock as property subject to the guardianship.  The trial court entered an order setting a hearing on that daughter's petition, and mailed the order to the other daughters who received it just four days before that hearing. 

At the first guardianship hearing, the trial court appointed the daughter as ETG.  Once she was appointed as ETG, the daughter and the ward's counsel submitted a proposed order requiring the shares to be transferred to her as guardian.  Without notice to the other daughters or a hearing, the court signed the order.  The father died the next day.

The daughter later sought to be discharged as ETG and filed her final report.  She also transferred the shares from herself as guardian to herself as personal representative of the father's estate.

The Pennsylvania court ultimately found in favor of the daughters and held that the stock was held as joint tenants with rights of survivorship.  Five months after the ETG filed her final report, the other daughters filed an untimely objection about the ownership of the shares.  They argued they lacked notice and an opportunity to be heard, and asked the court to disapprove of the ETG's final report.

The guardianship court ultimately entered an order approving the final report and noted that the other daughters had objected but that their objection was untimely.  The court also approved the distribution of the shares to the estate.  The daughters moved to vacate the discharge order and argued that they were deprived of their stock without due process.  

The Court noted that Rule 5.648(b) only requires notice of the petition for appointment of an ETG be served on the alleged incapacitated person and his attorney, not the daughters.  The daughters argued that since Rule 5.401 provides that "every petition or motion for an order determining rights of an interested person...shall be served on interested persons," they should have received notice before the stock transfer occurred as interested persons.  The Court agreed, since their interests were affected by the court's order.  The Court also found, however, that their objection to the ETG's report was untimely, so they therefore abandoned or waived any objection to that report.

Comments

Post a Comment

Popular posts from this blog

Goodstein v. Goodstein

Goodstein v. Goodstein ,  263 So.3d 78 (Fla. 4th DCA 2019) I started this blog in 2013, and this is the first time I have the opportunity to write about a case that I am actually involved in. This case involves a long-running dispute between the father of the decedent, the personal representative of the estate, and the decedent's children, the beneficiaries of the estate (the personal representative's grandchildren). The personal representative appealed a decision by the trial court which required all estate assets to be placed in a restricted depository. Restricted depositories have been common-place in Miami-Dade County for quite some time. Recently, South Palm Beach County has instituted as similar requirement. As a matter of course, all estates opened since the introduction of this policy have been required to place all assets in a restricted depository and assets may only be withdrawn with a court order. Here, the beneficiaries had concerns about their actions a...
Read more

Malleiro v. Mori, Mori and Corallo

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 st...
Read more

Cantero v. Estate of Caswell

Cantero v. Estate of Caswell , --- So.3d --- (Fla. 3d DCA 2019) This decision involves an appeal of a trial court's order striking a claim as untimely. The claimant argued that his claim was timely because he was a reasonably ascertainable creditor who was not served with notice. The Court disagreed. The claimant argued that the estate should have known about his claim based on several conversations he had with the personal representative and the personal representative's attorneys. He was claiming an ownership interest in the decedent's real property because he paid for the property and paid the mortgage premiums over 20 years prior to the decedent's death for a 5 year period of time while he has in a relationship with the decedent. In his calls to the personal representative, the claimant apparently only mentioned that he had left some car parts in the garage and never said anything about an ownership interest in the property. He argued that he inquired, ...
Read more