Rubin on Probate Litigation

Stuart v. Ryan , 232 So.3d 418 (Fla. 4th DCA 2017) This decision is a nice review of the availability of exceptions to Florida homestead creditor protection.  Despite the fact that the discussion about exceptions to homestead being dicta,  because the property in question was determined to not be homestead property, the decision provides a summary of the status of the law in this area. The Florida Constitution lists only three exceptions to our homestead creditor protection: (1) government entities with a tax lien or assessment on the property; (2) banks or other lenders with a mortgage on the property which originated from the purchase of the property; and (3) creditors with liens on the property which originated from work or repair performed on the property.  The Court acknowledged that the Florida Supreme Court had recently recognized a fourth exception for alimony creditors, and that other Florida courts had found other exceptions for specific factually distinct situations

Flanzer v. Kaplan , 230 So.3d 960 (Fla. 2d DCA 2017) The Court here considered when a party must bring an action to challenge the validity of a trust purportedly procured by undue influence.  While the Florida Trust Code prescribes when a challenge to the validity of a trust may be started (when it becomes irrevocable or upon the settlor's death), the Trust Code does not specify a limitations period for challenging the Trust.  As a result, we must look to the general rules for limitations contained in Chapter 95.   In this situation, the daughter of the settlors of an irrevocable trust tried to challenge that irrevocable trust as the product of undue influence.  The trustees of the trust argued that her challenge was time barred because more than four years had passed since the trust had been created.  The daughter argued that the delayed discovery doctrine should apply, because undue influence is considered a "species of fraud."  The delayed discovery doctrine p

In re Guardianship of Bloom , 227 So.3d 165 (Fla. 2d DCA 2017) While this decision involved a lengthy description of prior litigation among the various competing parties in this guardianship, and ultimately trust and estate dispute, the takeaway of the decision is simple.  The Court noted an ambiguity in F.S. 736.1005 regarding when notice must be given of an application for attorney's fees, and held that, "an applicant for attorney's fees under section 736.1005 must serve an application for attorney's fees to the parties identified in the statute contemporaneously  with the filing of the application with the court" (emphasis added).