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Showing posts from June, 2016

Anderson v. McDonough

Anderson v. McDonough, 189 So3d 266 (Fla. 2d DCA 2016)
In this appeal, the appellant appealed a final order requiring him to pay fees and costs to his mother's estate following an unsuccessful will contest.  The fee award was granted pursuant to F.S. 733.106 (which provides that the court can direct from what part of an estate fees are to be paid) even though the appellant did not receive anything from the estate.  The Court held that this statute does not authorize the imposition of a fee award beyond what may be paid from a person's share of the estate, and does not create personal liability for attorney's fees.  
The estate attempted to argue that the fee award was a sanction for bad faith litigation.  The Court disagreed, finding that neither F.S. 57.105 nor the inequitable conduct doctrine applied here, where the estate failed to properly invoke the procedures of F.S. 57.105, and where even though the appellant lost his will contest, the case was not so clear cut so to …

Northern Trust Co. v. Shaw

The Northern Trust Co. v. Shaw, --- So.3d --- (Fla. 2d DCA 2016)
This decision deals with an interpretation of a surviving spouse's rights under a prenuptial agreement.  While the spouse argued that she was entitled to both $500,000 under the agreement and other assets left to her by the decedent, the personal representative felt that she was only entitled to the $500,000, and the other assets left to her by the decedent should be taken into account in satisfying that amount. The Court, relying on North Carolina contract law, ultimately felt that the personal representative's interpretation was correct.
The prenuptial agreement at issue stated that the wife would receive from the husband the sum of $500,000 from his estate.  It defined "estate" as his probate estate, any living trust created by him, as well as life insurance, individual retirement accounts, qualified and nonqualified deferred compensation plans and other assets that may pass by beneficiary designation …

Howard v. Howard

Howard v. Howard, --- So.3d --- (Fla. 4th DCA 2016)
While most practitioners are familiar with the rules and procedures surrounding the guardianship process, many are less familiar with the procedural requirements for the appointment of a guardian advocate on behalf of someone with a developmental disability.  This decision deals with two such procedural requirements: (1) what constitutes a finding of "good cause" to proceed with the guardianship proceeding without the potential ward present and (2) the requirements for a written order appointing guardian advocates.  
Good Cause to Proceed Without Potential Ward:
Here, the potential ward did not attend the hearing on her family's petition for the appointment of guardian advocates.  The ward's attorney did not waive his client's presence, but did state on the record that he had communicated with her and she did not want to attend.  The ward's father testified about the ward's physical and mental limitations, …