Friday, December 18, 2015

Gossett v. Gossett

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 distributions before challenging the later versions of the trust.  The Appellate Court reversed, finding that the rationales for the renunciation rule do not apply to the distributions to the son.  First, renunciation protects the trustee if the trust is invalidated, which the Court held was not relevant here because the son was entitled to more than the distributions he received.  Second, renunciation is required to demonstrate that the lawsuit is sincere and not vexation.  The Court dismissed this rationale, stating that vexation and insincere claims are always present and no more so here.  Finally, renunciation is necessary to ensure that the property is available for disposition, which the Court held was not relevant since he was entitled to more than the distributed amount if he prevailed.  

Thursday, December 3, 2015

Keul v. Hodges Blvd. Presbyterian Church

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 found that the neighbor used her confidential relationship with the decedent and actively procured the POD designation, and as a result it invalidated the POD designation.

The neighbor attempted to argue on appeal that Florida law does not allow a POD designation to be invalidated for undue influence.  The Appellate Court disagreed.  It found that Florida has a legitimate public policy interest in preventing the abuse of confidential relationships.  It noted that even though a POD designation is an inter vivos transfer, it has the attributes of a testamentary transfer since it has no effect until the death of the owner, and thus under Florida law, it is subject to challenge on grounds such as undue influence, fraud, duress, and overreaching.  It disagreed with the neighbor that because the banking statute governing POD designations (F.S. 655.82) does not contain the undue influence provisions found in the probate code, it cannot be challenged for undue influence.

The neighbor also argued that the trial court lacked authority to order her to return the funds to the estate.  The Court held that such an order is clearly proper pursuant to F.S. 733.812.  The fact that failure to comply with a court order can justify a finding of civil contempt which may ultimately lead to incarceration, does not make the remedy unconstitutional.

Wednesday, December 2, 2015

Gordin v. Estate of Maisel

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 probate court appointed an attorney as curator.  The letters of curatorship gave the curator the full powers of a personal representative.  The personal representatives appealed, arguing that it was legally improper for the probate court to simultaneously appoint a curator and a personal representative to act on behalf of the estate.

The Court agreed with the personal representatives.  It noted that while there is little guidance in the law regarding when a curator should be appointed, the few cases and statutes that do exist are instructive in this situation.  The 1st DCA in In re Estate of Miller noted that a typical situation in which a curator is appointed is where there is a delay in the appointment of a personal representative. Similarly, F.S. 731.201 defines a "curator" as "a person appointed by the court to take charge of the estate of a decedent until letters are issued."  Further, FPR 5.122(e) provides instructions for a curator to account for and deliver estate property to the personal representative.  Thus, the role of the personal representative is intended to succeed the role of the curator in the administration of the estate.

The Court also found that the simultaneous appointment of a curator and a personal representative created an inherently conflicting scenario in which two persons have virtually the same power to exert over the estate.  The curator was not appointed to serve as a joint personal representative, in which case the law provides instructions as to how decisions are to be made.

Ultimately, the Court noted that the probate court has the authority to remove a personal representative and appoint a curator to serve until a successor personal representative can be appointed, however, where the personal representatives are not temporarily removed and their powers are not temporarily suspended, a curator cannot be appointed.