Showing posts from 2019

Levine v. Stimmel

Levine v. Stimmel, --- So.3d --- (Fla. 5th DCA 2019)
Florida Statutes F.S. 736.1004 provides that in actions for breach of fiduciary duty or challenging a trustee's exercise (or nonexercise) of their powers, and in trust modification proceedings, the court may award fees as in chancery actions. Here, the Court considered whether F.S. 736.1004 allowed a party to recover fees after unsuccessfully litigating entitlement to fees under F.S. 57.105. 
More specifically, in this instance a fiduciary sought fees under F.S. 736.1004 after successfully defending claims revolving around alleged breaches of fiduciary duty. Part of the fees she sought were those incurred pursuing an unsuccessful F.S. 57.105 motion. The Court held that because F.S. 736.1004 does not expressly authorize recovery of attorney's fees for time spent litigating an alternative ground for fees, the fees incurred litigating the entitlement to fees were not recoverable.

Romanoff v. Lazarus

Romanoff v. Lazarus, 267 So.3d 33 (Fla. 4th DCA 2019)
Failure to raise a defense of lack of personal jurisdiction at the right time can constitute a waiver of the defense altogether. The timing of the defense has to be exactly right or the defense will often be waived. Here, the defendant did not raise the defense in her first motion to dismiss, but did raise it in a second motion to dismiss which was filed before the court heard her first motion to dismiss.
Lack of personal jurisdiction is a defense that must be raised at the first opportunity and before the defendant takes any steps in the proceeding which would constitute submission to the court's jurisdiction. However, a waiver will not occur if the initial motion is amended to include the defense before the motion is heard. The Court held that while an answer which fails to raise the defense may constitute a waiver of the defense, a motion to dismiss that fails to raise the defense and is amended before it is heard will not con…

Jacobsen v. Busko

Jacobson v. Busko, 262 So.3d 238
This decision is a short and sweet reminder that once an order of incapacity is entered removing a ward's right to contract, that ward no longer has the ability to independently hire counsel for him or herself. Here, even though F.S. 744.3215(1)(l) gives the ward the right to counsel, the ward's right to contract was removed when the court ordered him incapacitated. At that point, only the guardian had the ability to hire counsel for the ward.

Bitezakis v. Bitezakis

Bitezakis v. Bitezakis, 264 So.3d 297 (Fla. 2d DCA 2019)
While it seems easy enough to execute a will, this case reminds us that a client's attempt to do so at home without the guidance of a lawyer may have serious unintended consequences if the will is not executed in strict compliance with the signature requirements of F.S. 732.502.
Here, the decedent and two friends were in his home when first, two witnesses signed a purported will of the decedent, and subsequently, the decedent began to sign the will but stopped after signing just his first name after his wife instructed him to stop because a notary was not present. The next day, she took the decedent to a notary, where he mistakenly executed an affidavit of subscribing witness in the presence of a notary. The trial court found that because it was the testator's intent that the document be his will, the will should be admitted to probate.
The Court reversed and found that because the will failed to conform to the requirements…

Rizk v. Rizk

Rizk v. Rizk, 260 So.3d 467 (Fla. 3d DCA 2018)
This decision centers around the ability of a beneficiary to challenge a will executed in another country even if they did not contest that will in the country where it was executed. Here, the will was purportedly executed in Haiti in accordance with Haitian law. The beneficiary tried to challenge the will in Florida, alleging that the decedent was not actually in Haiti on the day the will was purportedly signed, and that the witnesses did not sign the will on that date. 
F.S. 732.502(2) provides that a nonresident's will will be treated as valid in Florida if the will is valid under the laws of the state or country where the will was executed. Because the beneficiary had not challenged the will's validity in Haiti and was receiving benefits from that will, the Court upheld the trial court's determination that the 2013 will was valid in Haiti.

Lee v. Lee

Lee v. Lee, 263 So.3d 826 (Fla. 3d DCA 2019)
This decision deals with the validity of a disclaimer executed by one of the decedent's daughters. Specifically, the Court considered whether the disclaimer was valid because it did not contain a legal description of the real property being disclaimed. 
Disclaimers are governed by Chapter 739, the Florida Uniform Disclaimer of Property Interests Acts. A valid disclaimer must (1) be in writing, (2) declare that the writing is a disclaimer, (3) describe the interest or power disclaimed, (4) be signed by the person making the disclaimer, (5) be witnessed and acknowledged in the manner provided for by deeds of real estate and (6) be delivered in the manner provided by the statute. F.S. 739.104. 
The statute provides additional requirements if the disclaimer is to be recorded, to provide constructive notice to those conducting a title search regarding real property being disclaimed. It states that a disclaimer "relating to real estate does…

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 as personal …

Maldonado v. Buchsbaum

Maldonado v. Buchsbaum, --- So.3d --- (Fla. 4th DCA 2018)
In certain situations, it is possible to get a temporary injunction without notice, but a court should not do so without strictly complying with the rules governing injunctions. In this case, the surviving spouse sought a temporary injunction against the decedent's aide who had allegedly fostered a relationship with the decedent and alienated him from his spouse during life. Following his death, the wife sought to enjoin the aide from taking possession of estate assets, destroying financial documents or representing to others that she was the sole beneficiary of the estate or representative of the decedent. 
The trial court issued the temporary injunction without notice to the aide based on spouse's argument that notice of the proceedings prior to the issuance of the injunction would afford the aide the opportunity to transfer assets out of the country. The Court found that the injunction was appropriate but that the tria…