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Showing posts from May, 2016

Richard v. Richard

Richard v. Richard, ---So.3d --- (Fla. 3d DCA 2016)
This decision deals with the application of the relation back doctrine found in F.S. 733.601, and whether it would apply to validate a notice to creditors that was published one day prior to the appointment of the PR.  The Court interpreted the meaning and history behind F.S. 733.601 and ultimately found that the doctrine does apply to validate the earlier filed notice to creditors.
The probate court had held that the notice to creditors published the day before the order was entered appointing the personal representatives was a nullity, and that the relation back doctrine did not apply to validate the act of publication.  In doing so, it found that a statement of claim filed more than three months after the first publication date was a timely filed the claim.
The Court disagreed with the probate court regarding the application of the relation back doctrine.  F.S. 733.601, which codifies Florida common law on this issue, states as follo…

Woodward v. Woodward

Woodward v. Woodward, 192 So.3d 528 (Fla. 4th DCA 2016)
This decision deals with whether res judicata and laches barred a beneficiary's claim against a trustee.  The Court held that neither applied, since the beneficiary's two claims against the trustee did not contain identity of the causes of action, and because the beneficiary did not know about the trustee's actions until he was served with an accounting.
In 1996, the beneficiary of the Trust at issue filed suit against the trustee for breach of fiduciary duty, alleging that the trustee failed to account, improperly mortgaged real property and improperly paid expenses of the trust.  During the pendency of the action, the trustee transferred the Trust's assets to two new trusts and terminated the Trust at issue.  The trial court eventually dismissed this complaint.
In 2011, the trustee served an accounting for the Trust, and the two new trusts, on the beneficiary.  The accounting showed the termination of the Trust and…

Hall v. Hall

Hall v. Hall, 190 So.3d 683 (Fla. 3d DCA 2016)
The Court took the opportunity in this decision to "reiterate a fundamental tenet of appellate advocacy."  Appellants attempted to appeal a probate court decision denying an undue influence claim and petition to revoke probate of a will and trust.  The probate court had heard the testimony of those present at the execution of the challenged documents and expert testimony regarding the decedent's medical records, and found that the challenged documents were properly executed, that they were prepared at the request of the decedent and that they were not procured by the appellee. Instead of simply PCAing the probate court's decision, the Court wrote this opinion, affirming the probate court's decision, and reminding appellants that in an appeal setting, the appellants are obligated to provide a statement of facts and to interpret the evidence in the light most favorable to sustaining the conclusions of the finder of fact…

Giller v. Giller

Giller v. Giller, 190 So.3d 666 (Fla. 3d DCA 2016)
This case involved whether a personal representative has the right to bring a suit for declaratory action under F.S. 689.07(1), which deals with real estate deed and conveyances which add the words "trustee" or "as trustee" to the name of the grantee, or whether relief under that section is limited only to subsequent purchasers or others relying on the deed.
The personal representatives brought their declaratory action in the probate proceedingafter learning of the existence of six parcels of real property titled in the name of the decedent "as trustee."  They sought a declaration from the probate court that the parcels were owned by the decedent in fee simple and that the properties became assets of the estate after his death.  Their brother argued that they lacked standing to sue under F.S. 689.07(1) because that section does not apply until after a subsequent conveyance of the property takes place.  
The …

Genauer v. Downey & Downey, P.A.

Genauer v. Downey v. Downey, P.A., 190 So.3d 131 (Fla. 4th DCA 2016)

Does a trust beneficiary have the right to intervene in trust litigation already being defended by the trustee? In this decision, which involved a dispute about the right of an attorney for a former trustee to recover his fees from the trust, the Court ultimately held that the beneficiaries of the trust had a sufficient interest in the proceeding that they should have been given the right to intervene and participate.
The trial court had held that the beneficiaries had the right to intervene, but that because the successor trustee was defending the trust, the beneficiaries did not have status as a party and did not have the right to file any motions, answers, counterclaims, or engage in any discovery.  The Court held that the limitations placed on the rights of the beneficiaries to intervene were such that the trial court's order was a de facto denial of the right to intervene.
Florida Rule of Civil Procedure 1.23…